Supreme Court Abortion Decision

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.

Fr. Frank Pavone


Father Frank A. Pavone is an American Roman Catholic priest and pro-life activist. He is the National Director of Priests for Life and serves as the Chairman and Pastoral Director of Rachel's Vineyard.

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  • Guest

    I agree 100% with this analysis.  This was a good decision all by itself but  bodes even better for the future.  Dr. Dobson's public statement on the decision agrees right down the line with Father Pavone's.  Dobson's analysis earned him the privilege of being vilified by Colorado Right To Life and the American Life League for being  a compromiser and a traitor to the pro life cause.   Go figure!  

  • Guest

    Good article!

    Criticizing is less complicated than dealing with victory, especially a partial victory. It is easier to say, "The King is a fink!" than it is to responsibly participate in solving problems. Just ask an Iraqi.

    The pro-life movement must be prepared for success, no matter how unexpected. When Roe is overturned, it will take the pro-life movement from the US Supreme Court into fifty different state courts and capitals.

    Moreover, it will require we put our deeds where our rhetoric has been; to put our love into action taking care of the poor babies, unwed mothers, intervening in abusive partnerships, supporting adoptions (adopting children ourselves?) and so on.

    Are we ready for that?

    Lord, give us Your strength.

  • Guest

    Actually Dobson admitted last week that the PBA ruling and I quote "ending partial-birth abortion…does not save a single human life." The Open Letter by CRTL was pointing out that Dobson and Focus were misleading Christians by purporting it would outlaw late term abortions (purported by Focus employees), protect preborn children and affirms the value of human life (both statements written by Dobson). Other leaders are admitting this ruling will not save one life since this letter was printed.

    The ruling does not have the authority to save one life. The state or Federal governments do not have the authority to set up extermination camps or abortion clinics. Where does the Bible give Fr. Pavone, NRTL, Supreme Court Justices or any other political/Christian/Catholic leader the authority to decide what innocent children live or die?

    The justices note that babies can be killed for any reason, no longer needing the false "health exceptions", it is unrestricted now. They also allow for the baby to be delivered to the navel and hacked to death. And if the baby slips out too far, a textbook PBA can still be done. How is that a victory? Kennedy actually affirms Roe V Wade in his dissent.

    In order to win this fight we must choose a path that is narrow or wide. The narrow way is to uphold God's commandment of Do Not Murder. This is done by not writing, endorsing laws and/of politicians that are pro-choice with exceptions. The wide way is the current strategy of letting humanist lawyers craft bills like parental consent in which grandparents can consent to the murder of their grandchildren. This is immoral by the way. It makes it even harder to get rid of abortion as more people become complicit in the deed.Craft legislation that will protect children, limit the abortion industry without codifying abortion in the law as well as the mind of our society.

    Which one of these justices have ever discussed the personhood of the child? How about none.

    This is a wicked ruling and does not defend life at all. Stop promoting it as if it does. I encourage everyone to read it at and confirm this information for yourself.

  • Guest

    Dear Father Pavone, I am convinced that it is impossible for any person or government to act morally unless they embrace the Catholic faith. The human mind is incapable of moral consciousness without the guidance of the Holy Spirit and the Holy Spirit will not come to anyone whom is not in Christ. So as long as many in the world are not Catholic, then atrocities such as this abortion will continue to exist. The only way to rid the world of immorality is to convert the entire world to the Catholic faith. In the Holy Love of God I am your brother and my name is Royal.