The April 18 Supreme Court decision, Gonzales v. Carhart, by which the Court upheld the ban on partial-birth abortion, is one of the most important Supreme Court decisions on abortion, and lays the groundwork for much future progress on this issue.
By permitting this federal ban to stand, the Court also reaffirms certain rights of individual states to legislate on abortion. Although Roe v. Wade told the states they could not prohibit abortion, the degree to which the states could regulate it has swung back and forth as a result of subsequent Supreme Court decisions. In 1992, the Planned Parenthood v. Casey decision, while reaffirming the core of Roe, nevertheless gave states wide latitude in passing abortion regulations. In 2000, however, the Carhart decision on partial-birth abortion again created obstacles for the states, and was used to challenge any common sense abortion regulation unless the regulation included an unlimited emotional health exception. Recall that "health" has a special meaning in abortion law: it includes "all factors — physical, emotional, psychological, familial, and the woman's age — relevant to the well-being of the patient" (Doe v. Bolton). The practical impact of Carhart was that common sense regulations of abortion supported by 70-80% of the public were enacted by state legislatures only to be bottled up in court for years.
For example, parental notice could not be required if the minor girl could cite an emotional reason for not wanting notification to be made. Such an unlimited emotional "health" exception would swallow any regulation. In Gonzales, the new majority effectively rejected such an unlimited emotional health exception.
This new decision reaffirms the latitude given to the states by the Casey decision, stating that abortion legislation will only be unconstitutional "if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Henceforth, this will be the guideline for state abortion regulations.
Abortion advocates want abortion to have the privileged status accorded by Courts to freedom of speech and freedom of religion. Abortion advocates insist that courts use very strict standards for constitutional review of any legislative efforts to respect unborn human life, and that if a law regulating abortion might be unconstitutional even in a rare and hypothetical circumstance, the whole law should be thrown out. In the Gonzales decision, the Supreme Court rejects this approach. The Court sent the message that it will not strike down abortion regulations simply because they are abortion regulations. Nor can the courts strike down abortion laws based merely on abortion proponents' speculative claims. The Court reaffirmed that states have legitimate interests in protecting fetal life and the health of women.
Cardinal Justin Rigali, speaking in his role as Chairman of the US Bishops' Pro-life Committee, wrote, "Especially welcome is the Court's explicit recognition of certain key facts: that abortion is the taking of a human life, and that government has a legitimate interest in protecting and preserving this life at every stage; that 'respect for human life finds an ultimate expression in the bond of love the mother has for her child'; that abortion may also cause grief and sorrow for women, which is only made worse when the reality of the procedure has been withheld from them until it is too late; and that the ethical integrity of the medical profession, as well as the fabric of our society, is threatened by the acceptance of practices that are difficult to distinguish from infanticide."
As our friends at Americans United for Life have summarized,
>Gonzales has restored the guidelines from Casey that are more deferential to state legislation.
>It reinforces the importance of informed consent. Justice Kennedy wrote for the majority:
"The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."
This is an unprecedented passage in an opinion by a majority of the Supreme Court justices.
>For the first time in 34 years, the Supreme Court narrowed the unlimited emotional health exception of Doe v. Bolton to a focus on "significant health risks." It opens the door for utilizing all our research on the negative impact of abortion on women.
>It opens the door to more aggressive regulation of abortion.
>It also has implications for bioethics. The Gonzales opinion shows greater Supreme Court humility than in Casey in 1992; the new majority will defer more to state legislatures. There is a considerably diminished possibility that the new Supreme Court majority will create, for example, a new "right to human cloning" or a new "right to destructive embryo research." They will leave these decisions to the states.