For the Record

Supreme Court Upholds Federal Abortion Ban, Opens Door for Further Restrictions by States

The time is now. Will you stand up for reproductive health and rights?

First published online:

In a tacit reversal of long-standing precedent, the U.S. Supreme Court on April 18 upheld the federal Partial-Birth Abortion Ban Act, even though the law lacks an exception to protect the health of the pregnant woman. Congress adopted and President Bush signed the ban into law in 2003, but it had been blocked as unconstitutional by three separate federal district court rulings, each of which was upheld by a federal appeals court. Supreme Court decisions over three decades—including the 2000 decision in Stenberg v. Carhart that struck down a similar Nebraska law—had made it clear that laws regulating abortion were required to include a health exception, both to protect a woman from being forced to carry to term a pregnancy that threatens her health and to prevent government from regulating abortion in such a way that forces women from a safer procedure to a riskier one. The Court's 5-4 decision in Gonzales v. Carhart—its first ruling in an abortion case since Justice Sandra Day O'Connor was replaced by Samuel A. Alito Jr.—essentially overturned that precedent.

In the short term, the federal ban is unlikely to have a major impact on abortion service provision nationally. Although the law's opponents had argued that it was so vaguely written that it could be interpreted to ban the most common abortion procedure performed throughout the second trimester (dilation and evacuation, or D&E), Justice Anthony M. Kennedy, writing for the majority, clearly identifies a variant of that procedure, intact dilation and evacuation, or D&X, as the only one that is prohibited. Based on its last census of abortion providers in 2000, the Guttmacher Institute estimated that just 2,200 D&X procedures were performed in that year, or 0.17% of all U.S. abortions; virtually all of these procedures were performed in the late second trimester. Today in the United States, nearly 90% of abortions are performed in the first trimester (before 12 weeks' gestation).

That said, there could be serious implications for individual patients and abortion providers. As Justice Ruth Bader Ginsburg notes in her dissent, "the safety advantages of [D&X] are marked for women with certain medical conditions, for example, uterine scarring, bleeding disorders, heart disease, or compromised immune systems." Under the Court's new precedent, physicians technically would be able to seek an exemption on a case-by-case basis to address such health concerns; the practicality of that option, however, is doubtful at best. Moreover, although the ruling emphasizes that a provider is subject to penalty under the law only if he or she begins an abortion with the intent of using the D&X procedure, the fear of prosecution, even if not actual conviction, may nevertheless stunt some providers' willingness to perform even D&E abortions, especially in the late second trimester.

The longer-term implications of the Supreme Court's decision to uphold the ban are extremely ominous. The ruling opens the door for states to enact—or reenact—restrictive abortion laws without health exceptions, with an understanding that the courts likely will uphold them. And Kennedy's paternalistic and moralistic statement of the "reality" that "respect for human life finds an ultimate expression in the bond of love the mother has for her child," coupled with his "unexceptionable" conclusion (notwithstanding "no reliable data to measure the phenomenon") that "some women come to regret their choice to abort the infant life they once created and sustained," appear to invite states to require women seeking an abortion to be provided with "informed consent" information designed to persuade them to continue the pregnancy. Proposals already on the table would require such women to view an ultrasound of the fetus or be told scientifically unsound "facts" linking abortion to breast cancer or future mental health problems. Finally, beyond these incremental restrictions on abortion access, the willingness of the newly constituted Court to depart so dramatically from earlier precedent is seen as a further indication of the fragility of Roe v. Wade itself.