Analysis: The right of women and their physicians' to choose vs. Kennedy's "professed concern for women's health"

4/22/07: NPR interview with legal commentator, Mimi Wesson, about the Supreme Court's decision to uphold ban a particular form of abortion.

NPR: The Supreme Court decided this past week to uphold a statute passed by Congress that banned the abortion procedure called "intact dilation and extraction." While opponents of the procedure, which they call "partial birth abortion," declared victory, proponents of the original Roe v. Wade decision are concerned that this is the first step towards the elimination of a woman's right to obtain and abortion. Now at the center of the discussion after the Court's decision is the health of the mother. Many medical experts argue that this decision prohibits a procedure that is sometimes necessary to protect the mother's health. Remind us of some history. Roe v. Wade held that any prohibition against abortion had to have an exception for the mother's health, correct?

Mimi Wesson: That's right. And so did later decision by the Court as well. The Congress, when it passed this recent statute forbidding the use of this one procedure, made a finding that there was a medical consensus that this procedure was never necessary to protect the mother's health. Justice Kennedy, in the majority opinion he wrote for the Court, admitted that this finding was erroneous. In fact, the prevailing medical view is that it is sometimes necessary for the mother's health. But Kennedy said that it was entitled to deference, this Congressional finding, because there was some disagreement in the medical community. In other words, because some doctors said that in their opinion this procedure was no safer than other procedures that the statute allows. And he also indicated that some deference had to be paid to the Court's moral and "aesthetic" findings -- that the procedure was "gruesome" and "inhumane." That's a pretty striking contrast to Justice Blackmun's opinion in Roe v. Wade which insisted on deference to the moral judgment of a woman and her doctor.

NPR: There'a procedural part of Court's opinion that, although it's technical, may be important. Can you break it down for us?

MW: Yes. The five justices in the majority held that future challenges to a regulation or a restriction on the availability of abortion had to be brought by someone whose personal circumstances made it clear that she would be hurt. That is, that her health would be threatened or her life endangered by the regulation. So it's not enough for some abortion provider who wants some clarification to guide her future practice to bring a lawsuit. In practice, this restriction is likely to mean that the only acceptable plaintiff to challenge an abortion restriction in the future is a woman who is already pregnant or perhaps her doctor. So this technical limitation is likely to make these sorts of cases challenging abortion restrictions very difficult to bring and see through to a conclusion.

NPR: Justice Ruth Bader Ginsburg wrote a strong dissent. She was joined by Justices David Souter, John Paul Stevens, and Steven Bryer. What were Justice Ginsburg's main points?

MW: It was a very passionate and angry dissent that she wrote. Among other things, she took note of the language that Justice Kennedy used which she found partisan. For example, he talked about "an abortion doctor" instead of a physician or obstetrician, "baby" instead of fetus. He spoke of those doctors who had concerns about the safety of alternative procedures as having a "preference" or "seeking convenience." And another feature of the majority opinion that she really deplored was its suggestion on the basis of just one friend-of-the-Court brief that many women experience depression and disabling grief after choosing an abortion. So this is an alleged "risk to the health" of a woman that Justice Kennedy found to be one justification for limiting the availability of abortion. To Justice Ginsburg, Justice Kennedy has used the professed concern for a woman's health to limit abortion instead of, as in the past, as reason to make it available to the women who choose it. She found the suggestion that women can't be trusted to make this choice for themselves patronizing at best, reflecting a view of women more associated with the 19th century than the 21st.

NPR: What do you expect as the result of this decision?

MW: Immediately?... I expect some medical professionals who provide abortions after the first trimester to reconsider their willingness to do so. The unpredictability of how any medical procedure is going to go, the law's uncertainties -- these may instill in them a fear of prosecution that may cause them to reconsider their commitment to providing this kind of abortion. And I expect that in some state legislatures efforts will be made to pass legislation imposing new restrictions on or even prohibiting all abortions. I think one common sort of proposal will require women who seek even very early abortions to subject themselves to a sort of in-your-face description or depiction of the procedure and the developing fetus and the likelihood that they'll later experience some terrible regret. Some of this legislation will pass; some probably won't. Some laws that pass will begin working their way through the courts again if qualified plaintiffs can be found under the new technical rules. I think this issue is going to be with us for a very long time.