Supreme Court Brushes Aside Serious Risks to Women’s Health in Upholding Abortion Ban

On Wednesday the Supreme Court released one of the most eagerly anticipated opinions of the term. The opinion addressed challenges to the so-called Partial Birth Abortion Act. A sharply divided Court disregarded compelling medical evidence that prohibiting a certain type of abortion procedure could jeopardize the health of the mother in upholding the Act’s ban of this procedure. As we discussed in our Supreme Court preview in September, we suspected that the addition of Chief Justice Roberts and Justice Alito would dramatically impact our fundamental rights, such as a woman’s right to choose. As we feared, the addition of the new justices – especially Justice Alito’s replacement of Justice Sandra Day O’Connor – has eviscerated the requirement, reiterated in the Supreme Court’s 2000 decision in Stenberg v. Carhart, that where a woman’s health might be endangered by an abortion restriction, it must contain an exception to protect her well-being.

In determining that there was no clear threat to women’s health in this case, the majority credited testimony of doctors who do not perform abortions, while rejecting the testimony of the American College of Obstetricians and Gynecologists and the Court’s own requirement that “an abortion regulation must contain a health exception if substantial medical authority supports the proposition that banning a particular procedure could endanger women’s health.”

In an eloquent dissent, Justice Ginsburg pointed out the irrationality of the majority opinion and expressed her concern for women’s rights and health:

Today’s decision is alarming. …. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG).
…

The Court deprives women of the right to make an autonomous choice, even at the expense of their safety.

In their confirmation hearings, Chief Justice Roberts and Justice Alito purposefully sidestepped all efforts to shed light on how they would decide critical cases regarding a woman's right to choose and the right of privacy. However, both justices assured the public that they would give significant weight to precedent and take stare decisis seriously.

At his confirmation hearing, Justice Alito testified that “it is the presumption that the court will follow its prior precedents.” He also stated that “different justices and different judges have different views about stare decisis, but my view is that you need a special justification for overruling a prior precedent and that reliance and reaffirmation are among the factors that are important.”

Chief Justice Roberts testified at his hearing for a position on the D.C. Circuit Court of Appeals that “Roe v. Wade is the settled law of the land. … There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey.”

(Some commentators have made much of the fact that Justices Roberts and Alito did not sign onto a concurrence written by Justice Thomas and joined by Justice Scalia, which expressly repudiated the holdings of Roe and Casey. But the fact remains that they joined an opinion which undermines those precedents).

This case starkly shows the impact of the confirmation of these two justices. Justice O’Connor’s loss – and the addition of new justices who will be on the Court for decades to come – probably means that a woman’s right to choose will not be the last of our vital constitutional rights to be eroded by the Roberts Court.