The Supreme Court’s new moral authority

Justice Kennedy’s opinion in the recent decision to uphold an abortion ban needs dissection.

by Abby Bar-Lev

This past Wednesday the Supreme Court of the United States decided the potential life of a fetus is more important than protecting the health of the woman carrying it.

Ever since the Court legalized abortion in Roe v. Wade (1973), it has upheld nearly every abortion restriction so long as it included an exception to protect not just the woman’s life, but her health as well.

That entire line of precedent flew out the door Wednesday. For the first time in its history, the Supreme Court upheld a ban on an abortion procedure that does not include an exception when the mother’s health is at risk.

The outlawed procedure – intact D & E as it is medically known, or “partial-birth” abortion as it is politically known – is undoubtedly a gruesome procedure. But according to the American College of Obstetricians and Gynecologists, it is a “procedure found necessary and proper in certain cases.”

Many medical doctors and experts testified that intact D & E is in fact often a safer procedure than standard D & E. A doctor removes a fetus in whole during an intact D & E procedure, but has to go in and out of the uterus several times to remove pieces of the fetus during standard D & E – raising the risk of impaling the uterus and other complications.

The majority, however, decided not to abide by medical evidence. Rather, the Court deemed reliable Congress’s findings that intact D & E is never necessary to preserve a woman’s health, even though Justice Kennedy himself noted that so-called expertise was bogus: “None of the six physicians who testified before Congress had ever performed an intact D & E. Several did not provide abortion services at all; and one was not even an OBGYN … The oral testimony before Congress was not only unbalanced, but intentionally polemic.” The Court’s rationale was that even though Congress’s findings were phony, Congress was acting on “ethical and moral concerns that justify Ö prohibition” of intact D & E abortions. Apparently, that logic now holds constitutional muster.

Equally absurd and disturbing is the language scattered throughout the majority opinion. As Justice Ginsburg points out in her dissent, “Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label ‘abortion doctor.’ “

More so, Justice Kennedy refers to a fetus as an “unborn child” and “baby” and casts aside medical judgments of doctors who perform intact D & E “as ‘preferences’ motivated by ‘mere convenience.’ ” Such language clearly demonstrates that the Court hardly decided this case on constitutional principles and precedent; Justice Kennedy and the rest of the majority find intact D & E abortion repugnant, and that is enough to uphold its prohibition regardless of circumstance or health risks.

Justice Kennedy’s opinion exudes an insulting, patronizing and patriarchal tone. He mused, “The Act Ö recognizes that respect for human life finds an ultimate expression in a mother’s love for her child.” He continues to assume, without any evidence whatsoever, that many women do not want to know the details of the procedure before they undergo the abortion and realize only afterward what they did and regret and suffer from their choice. This raises two questions of concern:

1) If the majority believed, as they did, that the lack of information before an intact D & E abortion was a legitimate state interest, then why not conclude that doctors must inform women of the details ahead of time? If that is really the issue and not some political leaning or personal opinion, why ban the entire procedure without a health exception?

2) What about the women who choose intact D & E abortion and do not regret it because they knew it was what they had to do?

Seven years ago a nearly identical case came before the Court. That case, Stenberg v. Carhart (2000), involved a Nebraska law that banned essentially the same type of abortion and also neglected to include a provision protecting a woman’s health. The Supreme Court held that law unconstitutional. It found the law to be too vague so that the ban could confuse doctors and prohibit some second-trimester abortions. The Court also said that the law needed to include a provision protecting a woman’s health. Justice Kennedy authored a strong dissent in that case.

This past Wednesday, that dissent became the majority. Neither precedent nor the Constitution has changed in the past seven years, but one thing has: the makeup of the Court. With Sandra Day O’Connor replaced by Justice Samuel Alito and John Roberts as the new Chief Justice, there is no veiling the intention or direction of this Supreme Court.

The Court’s majority feels a need to coddle women from making choices they may regret later; choices that the Court takes out of doctors’ and women’s hands. It has very little to do with constitutional law and everything to do with a fundamental disrespect for women and their choices. As Justice Ginsburg articulated in her dissent, “the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.”

This is one of the most regressive and alarming decisions women have seen in a long time. It opens the door to further restrictions on abortions that disregard a woman’s health. With this new anti-abortion majority on the Supreme Court, there is little doubt that the Court will continue to chip away at a woman’s fundamental right to choose abortion as set out in Roe v. Wade and now with more zeal.

Women do not need hand-holding or finger-wagging from the Supreme Court. What we need is constitutional law to trump justices’ individual notions of morality. Unfortunately, the Supreme Court is not holding itself to the same standard.

Abby Bar-Lev welcomes comments at [email protected]