By Tierney O’Rourke
Over the past decade, the number of restrictions placed on abortion practices has spiked, and has severely limited a woman’s ability to practice her legal right to choose. Under Supreme Court ruling Planned Parenthood of Southeastern Pennsylvania vs. Casey in 1992, states are free to place restrictions on abortion as long as it does not place an “undue burden” on the woman. This intentionally vague ruling has left ample room for states to impose restrictions that come between a woman and her right to an abortion. Such restrictions include parental notification for women under 18, waiting periods, biased counseling, TRAP (Targeted Regulation of Abortion Providers) laws, physician/hospital rules, gestational age limits, “personhood” measures, fetal pain laws, bans of public and private funding for abortions (like the Hyde Amendment of 1997), mandatory ultrasounds, and restrictions of medication abortion. The United States Congress enacted another such restriction in 2003 with the Partial-Birth Abortion Ban Act that criminalized the practice of late-term abortion via intact dilatation and extraction. If a physician is found to have performed such an operation, they could serve up to two years in prison. In 2007, the United States Supreme Court upheld this decision in Gonzales vs. Carhart.
Gonzales vs. Carhart overturned the District of Nebraska State Court’s decision in Carhart vs. Ashcroft and the 9th Circuit US Court of Appeals case Planned Parenthood vs. Ashcroft that deemed the Partial Birth Abortion Ban Act unconstitutional. This was seen as a dramatic shift in the Supreme Court towards serious restriction of abortion rights (most likely on account of the retirement of Sandra Day O’Connor and the institution of Samuel Alito). As the New England Journal of Medicine noted, this ruling was the “first time the Court has ever held that physicians can be prohibited from using a medical procedure deemed necessary by the physician to benefit the patient’s health.” The majority opinion of Kennedy, Alito, Roberts, Thomas, and Scalia disregarded medical evidence provided by the defense, ruling in favor of the Partial Birth Abortion Ban Act in that “a moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion… is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.” Not only does this ruling negate the large amount of medical evidence showing that IDE is in some cases necessary to protect the woman’s health (including instances of fetal hydrocephalus that can cause severe damage to a woman’s cervix), but in citing moral and ethical concerns it also violates the First Amendment of the US Constitution that promises a separation of church and state. In addition, Justice Thomas cites the Commerce Clause of the US Constitution as giving Congress sufficient power to regulate such medical practices in his concurring statement. However, the Commerce Clause only gives Congress power to regulate “commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Thus, the connection between medical practices and regulating commerce is far too vague and requires too large amount of subjective interpretation to serve as evidence enough in this matter.
While I oppose Gonzales vs. Carhart on the grounds of supporting a woman’s right to choose, I also find it unconstitutional and medically uniformed. As mentioned above, IDE procedures may very well be necessary in certain cases to protect a woman’s health, and it also favorable to other late-term abortion techniques in that it poses a lower risk to damaging the woman’s cervix or uterus. Gonzales vs. Carhart does not provide for exceptions in life-threatening cases, which marks an incredible injustice for women’s health and places the decision-making power in the hands of legislators rather than medically trained professionals. Additionally, as the dissenting opinion noted (written by Justice Ginsburg and joined by Justices Stevens and Breyer), this ruling violates a woman’s personal autonomy and her right to equal citizenship: “legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature” (4). Additionally, this law violates the 1992 Supreme Court case Planned Parenthood vs. Casey that deemed it illegal for states to place restrictions on abortion that result in an “undue burden” for women. The criminalization of IDE does indeed place an “undue burden” on women seeking late-term abortion, especially in cases on medical need. Additionally, when considering that 49% of pregnancies each year are unintended, and that poor women have an unintended pregnancy rate six times higher than that of higher-income women, such abortion restrictions place this undue burden disproportionately on poor women (Finer and Zolna). Additionally, such restrictions on abortion are economically unintelligent, as 64% of births resulting from unintended pregnancies were paid for by public insurance programs funding largely by tax dollars (Sonfield et al). Total public expenditures from such births were estimated at $11.1 billion in 2006 (Sonfield et al). Additionally, not only is this burden placed disproportionately on the poor, but more specifically on poor women, making such legislation discriminatory on gender lines. 66% of births to unmarried women aged 20-24 were unintended (Zolna and Lindberg). Given that, on average, only 31% of single mothers in the United States receive child support, and that the average cost of raising a child for families making under $56,000 a year is about $125,000, these poor single mothers are left with a vastly disproportionate monetary duty when their access to abortion is so severely limited (US Census Bureau 2011, USDA Expenditures on Children 2009). Thus, Gonzales vs. Carhart is not only unconstitutional, but also medically uninformed, economically unintelligent, and legally discriminatory against poor women.
Tierney O’Rourke is a senior at Stanford University majoring in American Studies with honors and minoring in Human Biology.
Finer LB and Zolna MR, Unintended pregnancy in the United States: incidence and disparities, 2006, Contraception, 2011, 84(5):478–485. Guttmacher.org.
Ginsburg, Ruth Bader. Opinion of the Court: Dissenting. Justices Stevens and Breyer. Gonzales vs. Carhart, 500 US 124 (2007). Print.
Gonzales vs. Carhart, 500 US 124 (2007). Print.
Kennedy, Anthony. Opinion of the Court: Majority. Alito, Roberts, Thomas, Scalia. Gonzales vs. Carhart, 500 US 124 (2007). Print.
Lino, Mark. Expenditures on Children by Families. US Department of Agriculture, Center for Nutrition Policy and Promotion. 2009.
Sonfield A et al., The public costs of births resulting from unintended pregnancies: national and state-level estimates, Perspectives on Sexual and Reproductive Health, 2011, 43(2):94–102. Guttmacher.org
Unintended Pregnancy: Incidence and Outcomes Among Young Adult Unmarried Women in the United States, 2001 and 2008, Guttmacher Institute. Guttmacher.org