Supreme Court sides with anti-woman ideologues

The April 18 U.S. Supreme Court decision restricting women’s right to abortion will go down in history as a landmark reactionary ruling, with far-reaching consequences for reproductive rights and women’s rights in general. The court’s five to four ruling in Gonzalez vs. Carhart et al. is a vicious attack meant to signal that women’s right to choose abortion may be overturned by the high court altogether in the not too distant future. (www.supremecourtus.gov/opinions)

Chief Justice John Roberts joined Justices Samuel Alito, Clarence Thomas, Antonin Scalia and Anthony Kennedy—who wrote the decision—in overturning three rulings by the U.S. Court of Appeals for the second, eighth, and ninth federal judicial circuits, which had found the “Partial-Birth Abortion Ban Act” unconstitutional for failing to protect women’s health.

The grossly misnamed federal law was passed by Congress and signed by President George W. Bush in 2003, but was never enforced because of legal challenges led by Planned Parenthood Federation of America, the American Civil Liberties Union, the National Abortion Federation and the Center for Reproductive Rights.

The Supreme Court, in upholding the 2003 federal ban, essentially ruled as illegal certain procedures used in post-first-trimester abortions, procedures referred to by physicians and the medical community as dilation and extraction (D&X) or intact dilation and evacuation (D&E). Medical professionals have decried the term “partial birth abortion” as a politically charged and unscientific term meant to restrict women’s right to exercise medical options that are often the safest and best for them.

The Court’s decision ominously overturns 34 years of precedent by providing no exceptions for the health of women. The court ignored decades of its own legal standards by ruling that restrictive measures on women’s health are no longer considered an “undue burden” in outlawing certain abortions.

Medical opinion and expertise are no longer allowed a role in women’s and doctor’ decisions on the best type of post-first-trimester abortion procedure for a particular patient. Decades of legislative and judicial rulings guided by the principle of safeguarding women’s health have been tossed aside with the stroke of a pen, with the justices providing no cogent reason in their decision.

While many people erroneously believe that only women who are too “lazy,” “selfish,” “irresponsible” or “intellectually diminished” could “put off” having abortions in the first trimester, nothing could be further from the truth. The federal abortion ban will especially affect older women, who after second-trimester amniocentesis may find out they are carrying a dead or dying fetus or one with severe problems such as hydroencephalus. These are the women most at risk for serious pregnancy complications, including pre-eclampsia and other severe medical problems.

The ban will also affect younger women who because of fear, lack of correct information and finances, and the inability to control their life’s circumstances, are not able to deal with an unwanted pregnancy until after the first 12 weeks.

The law’s vague and unscientific language also puts a cloud of doubt on procedures used for first-trimester abortions as well. Anti-choice advocates have uniformly expressed glee that laws introducing more abortion restrictions without regard to a pregnant woman’s health or the stage of fetal development will now be passed and legally upheld.

The Supreme Court stated in its decision that the 2003 federal law “... appl[ies] both pre-viability and post-viability because ... a fetus is a living organism while within the womb, whether or not it is viable outside the womb.” (550 U.S. 2007, at 17) Advocates of “fetal personhood” are now emboldened to push for laws wherein women’s rights will be secondary to the rights of fetuses.

On April 19, the day after the Court’s decision, legislators in Michigan and Louisiana introduced their own versions of the “partial birth abortion” ban, with at least four other states following suit.

Both sides of the “abortion debate” agree that further restrictions to reproductive rights will soon proliferate and challenge Roe vs. Wade, the 1973 Supreme Court decision that legalized abortion as part of a woman’s right to medical privacy.

The 2008 legislative season is already being called a “free-for-all” with the expectation that dozens of states will introduce and pass restrictions on women’s right to abortion. One or more of these laws will then be reviewed by the high court, which is now postured to overturn Roe.

The majority opinion written by Kennedy is a highly reactionary political document that adopts and embraces the language of anti-choice rhetoric and unproven, unscientific notions regarding women and abortion. In the 39-page decision, the term “mother,” ostensibly meant to indicate a pregnant woman, is used 23 times. Female anatomical terms are used over 36 times; “baby” or “infant” is used 11 times, and the word “kill” 28 times.

Even the words “love” and “moral” are included in the decision—for example: “Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision ...While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” (550 U.S. 2007, at 28-29)

The decision accepts the unproven and unscientific idea touted by right-wing anti-choice ideologues that choosing abortion somehow “hurts women” and women must be protected from regretting their decisions. But there is no reputable scientific study of any kind that proves that abortion harms women psychologically or physically.

The court’s language in Carhart has been universally condemned by women’s-rights advocates as paternalistic and condescending toward women. Justice Ruth Bader Ginsberg, the only woman on the court, in the dissent on behalf of herself, John Paul Stevens, David Souter and Stephen Breyer, wrote: “The Court offers flimsy and transparent justifications for upholding a nationwide ban on intact D&E [without] any exception to safeguard a woman’s health. ... [T]he Court deprives women of the right to make an autonomous choice, even at the expense of their safety. This way of thinking reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited.” (550 U.S. 2007 Dissent, at 13, 17)

Ginsberg’s dissenting opinion in this case will also have important implications for abortion rights and women’s rights in this patriarchal, capitalist society. Ginsberg dared to stray from framing abortion in the narrow right of “privacy,” a right implied but not guaranteed in the Constitution, and said that abortion rights are paramount to women’s equality in society: “[L]egal 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.” (Dissent at 4)

Indeed, Cass R. Sunstein, who teaches at the University of Chicago Law School, wrote on April 20: “In the long run, the most important part of the Supreme Court’s ruling ... may not be Justice Anthony M. Kennedy’s opinion for the majority. It might well be Justice Ruth Bader Ginsberg’s dissent, which attempts, for the first time in the court’s history, to justify the right to abortion squarely in terms of women’s equality rather than privacy. ... Ginsberg has now offered the most powerful understanding of the foundations of the right to choose.” (www.latimes.com)

It should be remembered by all activists for women’s rights and reproductive rights, including abortion rights, that the victory in Roe vs. Wade was wrested from the Supreme Court by a vast struggling involving literally millions of women and male supporters. In 1973 the high court was forced to enact judicially what this militant struggle won in the streets. Like voting rights and civil rights for the African-American community, and overturning antiquated “sodomy” laws targeting gay, lesbian, bisexual and trans people, it was the struggle of millions that forced the confirmation of women’s legal right to choose abortion.

Now more than ever before, it is time for all progressive people to assist in revitalizing a mass movement for women’s rights and women’s lives and health, for equality and abortion rights for all women, including poor women and those most disenfranchised. Now is the time to bring pressure to bear on the large women’s organizations, including NOW, NARAL Pro-Choice America, the Feminist Majority, and others, to issue a call for a massive national march on Washington to turn back the tide of reaction aimed at women’s rights and equality.