Ever since a woman’s right to an abortion was defined as fundamental in the 1973 landmark case of Roe v. Wade, the Supreme Court has subsequently curtailed the right to an abortion. In the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court upheld a number of restrictions on a woman’s right to have an abortion. These restrictions included a 24-hour waiting period before an abortion could be performed, a parental consent provision and an informed consent provision.
As if the Casey decision did not impose enough obstacles in the way of a woman seeking an abortion, the Supreme Court’s decision this past week has created another obstacle of monumental proportions. In the case of Gonzales v. Carhart, a 5-4 majority of the Court held that the federal Partial-Birth Abortion Ban Act of 2003 did not impose an undue burden on a woman seeking to have an abortion. The law banned a procedure commonly used during second trimester abortions known as dilation and extraction, in which the doctor dilates the cervix and then inserts surgical instruments into the woman’s uterus to remove the fetus. Dilation and extraction is used instead of other methods after the first 12 weeks of pregnancy because it minimizes the chances of injury to the woman’s uterus.
While the federal law does contain an exception in order to save the life of the mother, it does not contain an exception to ensure her health. By upholding this legislation, I believe the Court has actually overturned Roe. The key holding in Roe, that a woman has a fundamental right to have an abortion until the point at which the fetus is viable, is no longer a reality as of last Wednesday.
In the 1973 Roe decision, Justice Harry Blackmun said a woman’s right to an abortion is grounded in the fundamental right to privacy. The right to privacy was first established eight years earlier in Griswold v. Connecticut when the Court struck down a Connecticut statute forbidding the use of contraception by married couples. The Court considered privacy to be an essential component of the “liberty” protected against state infringement by the Due Process Clause of the 14th Amendment.
Applying this precedent to Roe, state criminal abortion laws that exempt only life-saving procedures from criminality, without regard to the woman’s stage of pregnancy, violate the Due Process Clause. However, the Roe majority did note that the right to abortion must be qualified, due to the fact that the state has a substantial interest in protecting the life of the fetus. Thus, the Court created what has become known over time as the trimester framework (see table).
The key insight we can see from this framework is that according to Roe, the states can only prohibit a woman from having an abortion once the fetus is viable (third trimester). So, while states may regulate abortion up until this point in time, they are not allowed to prohibit it. Well, until last Wednesday.
As I mentioned before, the Casey decision exemplified that the conservative-leaning Rehnquist Court wanted to cut back on a woman’s right to an abortion. While the Casey majority struck down a provision indicating that a woman must inform her husband prior to having an abortion, it upheld the three aforementioned provisions. While these three provisions (especially the parental notification provision) may have imposed obstacles in the way of a woman seeking an abortion, according to Justice Sandra Day O’Connor these obstacles were not substantial. In other words, these provisions were consistent with the state’s power to regulate but not proscribe abortions prior to viability.
However, the reason that Casey is viewed as cutting back on Roe is due to the fact that O’Connor rejected Roe’s rigid trimester framework. In its place, she created the undue burden standard: a law is invalid if its effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. According to O’Connor, while the husband notification provision did impose a substantial burden, the other three did not. While Casey may have significantly chipped away at Roe’s exterior protections, O’Connor took special care to ensure that Roe’s essential holding would be retained. Thus, post-Casey, a woman’s right to choose to have an abortion before fetal viability remained untouched by the Court.
Unlike Casey, the Carhart case has effectively undermined Roe’s essential holding. By outright prohibiting the method of dilation and extraction regardless of during what stage of pregnancy it is used, the Court has for the first time permitted states to proscribe abortion before a fetus reaches viability. Thus, Roe’s core holding that a woman cannot be prohibited from having an abortion before fetal viability has now been overturned. It is completely inconsistent with Roe’s central holding for a woman to be prohibited from having an abortion as early as the 12th week of pregnancy. Roe’s central holding is now dead: a woman’s right to an abortion is now only free from prohibition during the first trimester.
Opponents of my argument would counter by saying that dilation and extraction is not the only method by which a woman can choose to have an abortion after the first trimester. There are at least another three or four methods which can be successfully used to perform an abortion during the middle to later stages at pregnancy.
My opponents fail to acknowledge that dilation and extraction is by far the most common form of second trimester abortion. The reason for its common use is not arbitrary: dilation and extraction is the method by which a woman has the least likelihood of permanently injuring her uterus in the process. So, the effect of the Court’s decision will not be to cut back on second trimester abortions, but rather to increase the number of women who experience serious injuries during more dangerous abortion procedures.
I have one final thing to say to all of you anti-abortion advocates: outlawing abortion will not decrease the number of abortions actually performed. It will only decrease the number of abortions legally performed. It is a scary thought that last week the Court took a giant step toward sending us back to the pre-Roe days of back alley abortions and unwanted children.