Abortion: Supreme Court Upholds Partial-Birth Abortion Ban Act Against Facial Challenge - Gonzales v. Carhart1

• Published in: American journal of law & medicine Vol. 33; no. 2/3; p. 523
• Main Author: Kessler, Bruce
• Format: Journal Article
• Language: English
• Published: Boston Cambridge University Press 01.04.2007
• Subjects: Federal court decisions; Partial Birth Abortion Ban Act 2003-US; Supreme Court decisions; Womens health
• ISSN: 0098-8588; 2375-835X

34 Justice Ginsburg then marshaled the findings in the District Courts and noted that their records indicate that substantial medical authority existed indicating that, in at least some cases, an intact D&E is the safest procedure.35 The dissent also stated that the majority did not respect the difference between previability and postviability, a distinction, the dissent argued, that is crucial for determining the State's interest in the fetus.36 The majority stated that the Act applies during both previability and postviability, because the Act uses fetus, which does not specify viability.37 The issue was not discussed further because it was not contested by the parties.38 Examining further inconsistencies with past precedent, Justice Ginsburg declared that the majority abandoned the heightened constitutional scrutiny of Casey and instead applied a rational basis test to uphold the Act.39 Finally, Justice Ginsburg took issue with the majority's definition of the relevant group that ought to be examined under Casey for determining whether the restriction creates an undue burden.40 Justice Ginsburg's stated that under Casey, when examining whether an undue burden exists, the Court must consider the women who need the procedure to preserve their health as the relevant group and not a large fraction of women, as the majority asserted.41 Following the Carhart decision, the New England Journal of Medicine published several editorials.42 One of these commentators worries that Carhart will prevent physicians from performing even legal D&E procedures out of fear that they might be investigated for criminal wrongdoing.43 Additionally, Carhart could create uncertainty for practitioners because it might resurrect many states' partial-birth abortion bans, which are now likely to be modified with constitutionally ambiguous language.44 A professor of obstetrics and gynecology at Harvard University wrote that the ambiguity of the Act's intent requirement will cause physicians to avoid similar legal medical procedures, possibly even when the mother's life is in jeopardy.45 Additionally, George Annas, a bioethicist writing for the New England Journal of Medicine, warns that the impact of Carhart expands beyond the issue of abortion and intrudes into the practice of medicine.46 Annas views Carhart as the first instance in which the Court allowed Congressional judgment to trump medical judgment by preventing physicians from performing a procedure they believe to be in the best interests of their patients.47 Carhart marks a significant change in the Supreme Court's abortion jurisprudence and its tone is a striking shift away from Casey.