For those of you who haven’t heard, the Supreme Court upheld the federal “Partial Birth” (Intact D&X) Abortion ban. Here’s my quick (non-lawyer) interpretation:
1) The majority (written by Justice Kennedy) believe that the barn adheres the to Roe standard because Roe mandates that restrictions on post-viability abortions have exceptions for the “life or health” of the mother. The ban does have an exception for the life of the mother, but not the health. Fair enough: with the help of a conjunction, the ban does not run afoul of Roe. But, as Justice Ginsberg points out, Casey mandates an exception for the health of the mother. So, Kennedy, what happened to stare decisis? Are we vacating Casey without saying as much?
2) Also, Roe says that the state has legitimate interest in protecting the health of the mother and the life of the fetus. But, this ban does not stop any abortions from being performed. It blocks a specific procedure (intact D & X), but says nothing of a similar procedure (D & E) which will be performed in its place. D & E has a greater chance of complications for some women. So, if no fetuses are being protected, and the law is detrimental to the health of women, where’s the legitimate interest?
3) But the most disturbing part of the decision is its view on women. Justice Kennedy says “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Kennedy’s solution? Ban the procedure! I’m sure some men regret buying Viagra (for any number of reasons). Somehow I’m guessing the Kennedy would say a ban on Viagra was unconstitutional. (Note: I’m not comparing abortion to Viagra, just noting that when some people regret choices the answer is not to restrict their freedom.)
The silver lining:
1) Though some women may be harmed as a result of this decision, no one will die.* Somehow I think the Court should set a higher bar for itself. (*The “life of the mother” clause and the availability of other procedures should prevent this tragic possibility.)
2) The Court opened the door for another constitutional challenge under some legal framework I don’t really understand, but that I think involves doctors suing. So that lawsuit will be filed shortly, and the law probably won’t go into effect (at least for now).
Overall, my largest worry is that this decision opens the door for many more restrictions on a woman’s right to determine her own actions.