A Sharp Reversal: Commentary from the Center for Reproductive Rights
The following commentary is by Bonnie Scott Jones, a senior attorney at the Center for Reproductive Rights.
In a stunning sacrifice of women’s health and physician judgment, the majority has held that where differences of opinion exist in the medical community, politicians may decide what doctors should do. This decision gives legislatures sweeping reign in the abortion context because there will always be differences of opinion among experts and practitioners about how best to protect the health of women seeking abortions. Indeed, given the nature of science, the diverse religious and moral views held by Americans, and the ease of creating and publishing (junk) science, those differences are inevitable on any issue intertwining medicine and morality. Accordingly, the decision opens the door for legislatures to dictate medical treatment in virtually any area of medical practice. By holding that legislatures are free to regulate whenever such differences of opinion exist, the Court has left Americans with politicians rather than doctors making medical decisions for them. The health costs of that holding today fall upon the one-third of American women who will obtain abortions in their lifetime.
Today’s decision constitutes not only a profound setback for woman’s health, but a sharp reversal from prior abortion jurisprudence. While the majority never admits to overturning precedent, it clearly does so. The most blatant reversal is of a central holding of Stenberg v. Carhart, the Supreme Court’s most recent abortion decision. The Stenberg Court held that where there is a dispute in the medical community about whether an abortion restriction could endanger women’s health, and where “substantial medical authority” supports the position that it could, then the restriction must contain a health exception. Today’s decision holds the very opposite: that where there is a dispute in the medical community about whether an abortion restriction could endanger woman’s health, no health exception is required. Thus, while Roberts and Alito gave lip service in their confirmation hearings to the importance of observing precedent and following established law, they did just the opposite in this case, granting certiorari — despite the fact that all three appellate courts to consider the Act applied the same controlling precedent and came to the same holding — and overruling a recent ruling disfavored by the new majority.
In addition to directly overturning Stenberg’s mandate to protect women’s health in the face of medical uncertainty, today’s ruling abandons core principles of Roe v. Wade and Planned Parenthood v. Casey. For over thirty years, abortion jurisprudence has required that women’s health be held paramount and not sacrificed to the government’s interest in potential life. Today, the Court has held that Congress, in the name of promoting respect for human life, may require doctors to change their abortion methods in ways that are less safe for women. The majority has also signaled its likely shift away from the holding of Casey that an abortion restriction is facially unconstitutional if it imposes an undue burden on a large fraction of the women to whom the restriction is relevant. Although the majority claims not to be deciding the standard applicable to facial abortion challenges, it makes clear its position that as-applied, rather than facial, challenges are the more appropriate (if not the only) mechanism for attacking abortion restrictions.
Finally, in light of these other shifts away from prior precedent, it does not seem alarmist to note that the central holdings of Roe and Casey – that a woman has a right to make the ultimate decision to terminate a pregnancy prior to viability, and that the state may not impose an undue burden on that right – were only “assumed” by the majority, not stated as the controlling law.
Accordingly, the decision opens the door for legislatures to dictate medical treatment in virtually any area of medical practice. By holding that legislatures are free to regulate whenever such differences of opinion exist, the Court has left Americans with politicians rather than doctors making medical decisions for them.
If this view is sincerely held, wouldn’t one stridently oppose mandatory HPV vaccinations?
Comment by Jacques McKenzie — April 18, 2007 @ 9:21 pm
Could Ms. Jones offer a citation to her statistic that “one-third of American women” will obtain an abortion in their lifetime?
It seems reasonable to believe that more abortions are obtained than reported. But I find it completely implausible that approximately 50 million American women obtain abortions at some point in their lifetime, as the statistic suggests.
With some well-grounded proof — i.e., a government figure or other solid statistical evidence, not a product of some interest group’s erroneous extrapolation — I’d be willing to believe it. But on its own, the claim is so tenuous that it undermines the credibility of Ms. Jones’s dire predictions.
It is no wonder that the post takes the unusual course of preemptively defending itself against suggestions of “alarmis[m].”
Comment by Taylor Reynolds — April 19, 2007 @ 12:07 am
“Granting certiorari — despite the fact that all three appellate courts to consider the Act applied the same controlling precedent and came to the same holding — and overruling a recent ruling disfavored by the new majority.”
Lawrence v. Texas can reasonably be said to have done pretty much the same thing, and all members of the dissent in this case were in the majority in Lawrence humm… Seems like the need to keep with recently decided precedent largely correlates with how strongly you feel that the precedent is wrong, and isn’t a function of any one group of justices. So I’m baffled by the complaint here that Roberts and Alito didn’t give due deference to recent precedent when it seems that all members of the court share that affinity . I concede that Stenberg is substantially closer in time to CarhartII than Lawrence was to its predecessor. But the difference hardly seems significant enough to cast members of today’s or actually yesterday’s, at this point) majority as uniquely guilty of being willing to squarely overturn a recently decided precedent.
Mr. Reynolds,
The “one third” statistic, at the moment, strikes me as being just another example of questionable statistics that are put to use by interest groups in attempt to convince the public that the class they claim is being treated unfairly, or that deserves more attention or funding, is much larger than that envisioned by the average Joe. Perhaps, however, the statistic counts morning after pills as abortions, a view that a sizeable percentage of anti-abortion proponents share. I would be surprised if one-third of American women qualified even under this definition, but the statistic is at least more plausible if given my suggested construction.
Comment by Jacob Berlove — April 19, 2007 @ 12:58 am
To Taylor Reynolds:
Please re-read the statistic. It is not “one-third of women living today” — it’s one-third of women who get pregnant.
According to a peer reviewed journal, it was one-in-three in 2003.
Finer LB and Henshaw SK, Abortion incidence and services in the United States in 2000, Perspectives on Sexual and Reproductive Health, 2003, 35(1):6–15.
Another statistic: “The abortion rate is the number of abortions per 1,000 women aged 15–44 in a one-year period. In 2003, the abortion rate was 20.8, meaning that about 2% of all U.S. women aged 15–44 had an abortion.”
http://www.guttmacher.org/in-the-know/references.html#ref25
Comment by kathy gill — April 19, 2007 @ 2:36 am
Mr. Berlove, perhaps people of the male persuasion should not draw conclusions so quickly about statistics concerning female health issues which which we are not as familiar. In any case, the answers are very close at hand. The “one third” reference is a widely quoted statistic from a study by the Alan Guttmacher Institute concluding that about one-third of all American women will have had an abortion by age 45. http://www.guttmacher.org/media/presskits/2005/06/28/abortionoverview.html This in turn appears to be based on cohort analysis from sources such as the National Center for Health Statistics and summarized elsewhere within CDC. See for example http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5511a1.htm Best wishes for your further research efforts.
Comment by Fred Heutte — April 19, 2007 @ 6:50 am
Bonnie Scott Jones adds the following:
Those interested in the statistic cited in my commentary (that one-third of American women will obtain abortions in their lifetime), may find the source on the Guttmacher Institute website, which states the following: “About half of American women have experienced an unintended pregnancy, and at current rates more than one-third will have had an abortion by age 45.” See http://guttmacher.org/pubs/fb_induced_abortion.html
Bonnie Scott Jones, Senior Attorney, Center for Reproductive Rights
Comment by Jason Harrow — April 19, 2007 @ 9:44 am
Accordingly, the decision opens the door for legislatures to dictate medical treatment in virtually any area of medical practice. By holding that legislatures are free to regulate whenever such differences of opinion exist, the Court has left Americans with politicians rather than doctors making medical decisions for them.
To follow up on Jacques’s point, every state has one or more state license boards that regulate who can practice medicine. We also have the FDA that determine what drugs can be made and sold, what medical devices can be sold, and how they are used. We regulate the colleges that teach medicine. Nearly every aspect of our medical treatment is strictly regulated by politicians!
Comment by Ben Kennedy — April 19, 2007 @ 3:01 pm