Pregnancy Justice in American Prospect on Sp. Ct. blow to pregnant women

Miscarriage of Justice

The federal "partial-birth" abortion ban has grave implications for all pregnant women, not only those seeking to end pregnancies.

By Lynn M. Paltrow
 American Prospect Web Exclusive: 04.19.07

[Last week] 

the U.S. Supreme Court upheld the first federal law that bans an abortion procedure for all women and all doctors in all states. By holding that Congress's interest in "preserving and promoting fetal life" trumps both scientific evidence and the health of pregnant women, the newly reconfigured Supreme Court overturned the opinions of three lower federal courts and its own precedent. While Justice Kennedy, who wrote the majority opinion, claims that the "act expresses respect for the dignity of human life," the decision expressly devalues the women who give that life.

Perhaps in the only good news that can be culled from the opinion, it constitutes the death knell of one of the anti-choice movement's favorite political ruses. For years the anti-abortion movement has argued that Roe v. Wade was wrongly decided, in part, because it federalized abortion and took power away from individual states to decide how to address the abortion issue. In this way, anti-choice activists implicitly reassured the public that even if Roe were overturned, abortion would undoubtedly remain legal at least in states like California, New York, and Washington.

But in the wake of yesterday's ruling in Gonzales v. Carhart, there is now little to stand in the way of a federal law banning abortions everywhere if Roe is overturned. In other words, abortion is not really a question of states' rights, but rather of controlling all pregnant women regardless of the state in which they live.

The Court also made clear that when it comes to women's health, Congress need not legislate based on scientific or medical evidence. The leading medical experts and the lower federal courts have found that the now-banned procedure is the safest option for some women, and that it is significantly safer for these women than other abortion techniques. And yet, the Supreme Court decision acknowledges, Congress ignored these factual conclusions. Yesterday's decision marks a radical departure from previous Supreme Court abortion decisions that required law-makers to legislate based on facts not politics.

Indeed, the ruling effectively reverses more than 30 years of precedent requiring that laws regulating abortion ensure protection not only of the woman's life, but also her health. In the majority opinion, Kennedy makes clear that the most critical reason for upholding the law is to express the government's interest in the value of fetal life regardless of what that may mean for pregnant women.

According to Kennedy, failing to reverse the unanimous rulings of three lower federal courts, all finding the abortion ban unconstitutional, would risk repudiating "that the government has a legitimate and substantial interest in preserving and promoting fetal life."

The decision thus has grave implications for all pregnant women, not only those seeking to end pregnancies. If the government can choose to advance fetal interests over the pregnant woman's health in the context of abortion, why can't so-called "fetal rights" prevail in the context of birth?

In fact, this argument is already being used to justify court-ordered Cesarean sections in cases where physicians believe that a c-section will prove more beneficial to the fetus (this despite the fact that c-sections constitute major surgery and pose increased health risks to the pregnant woman and in some cases the fetus as well). True, most courts so far rule that such interventions unconstitutionally strip women of their civil and human rights, including bodily integrity, informed medical decision-making, liberty, and, in one case, life itself. In that case, later reversed by an appellate court, both the woman and her baby died after a forced c-section ordered to protect fetal life.

But at least one federal court has said that sending police to a woman's home, taking her into custody while in active labor and near delivery, strapping her legs together and her body down to transport her against her will to a hospital, and then forcing her, without access to counsel or court review to undergo major surgery constituted no violation of her civil rights at all. The rationale? If the state can limit women's access to abortions after viability, it can subject her to the lesser state intrusion of insisting on one method of delivery over another.

There are other implications to upholding laws that award the fetus separate and greater rights than those of the woman. Comments by Kennedy in a concurring opinion in another Supreme Court case, Ferguson, suggest that he would have no objections to advancing fetal interests by permitting states to "impose punishment" on a woman who even "risks" causing harm to the fetus. In that case, the purported risks were those created by low-income pregnant women who used illegal drugs and who had no access to appropriate drug treatment despite seeking health care.

In his majority opinion, Kennedy worries that permitting a procedure that can advance the health interests of a pregnant woman is in fact something "laden with the power to devalue human life." My worry is that this case not only marks a significant attack on the rights and health of all pregnant women, it also reinforces government policies that value human life only when it involves limiting women's access to reproductive health care.

Yesterday President Bush said, "The Supreme Court's decision is an affirmation of the progress we have made over the past six years in protecting human dignity and upholding the sanctity of life. We will continue to work for the day when every child is welcomed in life and protected in law."

And yet the Bush administration is actively supporting policies to limit poor children's access to state child health insurance programs. In short, the Court's decision in Gonzales v. Carhart -- and Bush's professed support for it -- reinforces the sense, once again, that only the unborn deserve protection in this country. Not by ensuring universal health care, paid maternity leave, or an end to workplace pregnancy discrimination -- only by restricting pregnant women's access to health care.

Lynn M. Paltrow, Esq., is the executive director of Pregnancy Justice.