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January 01, 2007

The Chill Wind Blows

From the editors

On April 18, as this issue of Human Rights was going into production, the U.S. Supreme Court held in Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America that, contrary to the lower courts’ decisions (see main article), the Partial-Birth Abortion Ban Act of 2003 is constitutional even if it does not provide explicitly for exceptions to use of the banned procedure in cases where it is medically necessary to protect women’s health. Gonzales v. Carhart et al., 550 U.S. ___ (2007).

Justice Kennedy, writing for the 5–4 majority, states that any other conclusion would contradict “. . . a premise central to Casey [ Planned Parenthood v. Casey, 505 U.S. 833 (1992), reaffirming Roe v. Wade, 410 U.S. 113 (1973)] that the government has a legitimate and substantial interest in preserving and promoting fetal life.” He adds that Stenberg v. Carhart, 530 U.S. 914 (2003), in which the Court struck down Nebraska’s “partial birth abortion” law for lack of a health exception, is not absolute; it does not require a health exception when, as in this instance, medical uncertainty exists concerning the procedure. Kennedy writes that, under Gonzales, women’s health continues to be protected through the availability of procedures not banned and through challenges to the statute as applied in individual cases. Joining Kennedy’s opinion were Chief Justice Roberts and Justices Scalia, Thomas, and Alito.

In a vehement dissent that she read from the bench, Justice Ginsburg charges that the majority opinion contradicts precedent, misrepresents the facts concerning abortion, and illogically cites women’s “fragile” sensibilities and inappropriately relies upon “moral” concerns as bases for its holding. She argues that Casey specifically and clearly confirms that any government regulation of abortion must protect women’s health and concludes that the majority opinion “cannot be understood as anything other than an effort to chip away” at a woman’s right to make abortion decisions for herself. Justices Stevens, Souter, and Breyer joined in Ginsburg’s dissent.

Although Gonzales does not overturn Roe v. Wade, the decision does provide indicators, as predicted, about the previously unstated abortion views of the Court’s two newest members, Chief Justice Roberts and Justice Alito, and the influence of Justice Kennedy, as the Court’s “swing” vote, in abortion cases. Roe supporters say that the decision not only jeopardizes abortion rights in the future, but also will immediately and adversely affect doctors’ and women’s treatment decisions, undermine the doctor-patient relationship, and encourage even more legislative restrictions on women’s right to choose.

And the decision certainly will trigger even more political debate and court action in the months ahead. The Freedom of Choice Act has been introduced in the Congress, while action to further restrict abortion rights, or even ban abortion outright, is pending or anticipated in numerous state legislatures.


As published in Human Rights, Winter 2007, Vol. 34, No. 1, pp.16.