The Supreme Test: Will the Roberts-Led Court Follow Established Law And Protect Women’s Health?


Nancy Northup is the President of the Center for Reproductive Rights.

We have been down this road before. And we really shouldn't be going down this road again. Let me start with this term, "Partial-Birth Abortion." There is no such medical procedure as "Partial-Birth Abortion." It is a political soundbite.

The Center for Reproductive Rights brings cases[img_assist|nid=1353|title=Special Series|desc=|link=none|align=right|width=89|height=100] both in the United States and around the world and works with women's health advocates to strengthen laws protecting women's reproductive health. And we don't deal with this issue of "Partial-Birth abortion" anywhere else in the world. And that is because it was created as a political soundbite here, for American politics.

This case is about second-trimester abortions. That is all that this case is about. Second-trimester abortions. Babies are not born in the second trimester. Third trimester abortions are outlawed in most states around the United States, as long as there is a constitutional protection for women's life and health. So this is not about babies about to be born.

It is about safe procedures for women's abortions in the second trimester. And what this case, at heart, is about – because we've been down this road before – is about whether the new Roberts-led Supreme Court is going to follow established law, that "settled law" we heard so much about in the Supreme Court nomination hearings. It is about whether or not they're going to affirm that women having abortions in the second trimester have to be able to have the safest procedures for them.

I said we'd been down this road before. One of our clients, Dr. LeRoy Carhart, has literally been down this road before. He's a doctor in Nebraska; he challenged the Nebraska' so-called "partial birth abortion ban" and took it to the Supreme Court six years ago. And, just six years ago, in Stenberg v. Carhart, the Supreme Court said, "Doctors must be able to use the safest procedures with their patients."

In Stenberg v. Carhart, the Supreme Court made two very important determinations. They took a look at the Nebraska statute and said; "This is drafted so broadly that it would cover almost all abortion procedures in the second trimester. And therefore it's an undue burden on women's right to access abortion in the second trimester."

And secondly, the Court said that even if you were only talking about intact D&E's – and that's a medical term – that you would still need to have an exception for women's health, because there was substantial medical evidence that for some women it is a safer way to proceed with a second-trimester abortion

So, in essence, what the Supreme Court said, and Justice O'Connor was very clear in her concurrence, was that you might be able to draft a constitutional ban on intact D&E's if you did two things. One, you use medical terms. The majority said that it would have been a simple matter for Nebraska to have used medical language that doctors understand when you're hitting them with a criminal law. Two: Justice O'Connor said that you have to have a health exception. If you write these two things into the law you could probably draft a constitutional statute.

So that was the Stenberg case in 2000. Congress gets their hands on this issue and we're walking down this road again. Congress said to the Supreme Court "We don't care what you say about the constitutional requirements for women's health. We don't care. What we're going to do is pass a statute that is going to be a deliberate attempt to gut the protections of Roe."

And in fact, the Chief Senate Sponsor, Senator Santorum, during the process of the hearings, said, and I quote: "I hope the justices read this record. Because I am talking to you. There is no reason for a health exception."

Senator Santorum was saying "I don't care that you just said that women need to have the safest procedures. We, the Congress, are deciding that we do not want those guarantees for women's health." And so Congress passed the law once again. And, even though the Supreme Court had said, "It's a simple matter – if you're making criminal laws about medical procedures, use medical terms," Congress again used the political soundbite, "Partial-Birth abortion."

And this is a federal criminal statute. For a number of years I was a prosecutor in the U.S. Attorney's office in the Southern District of New York. I know full well what it means to bring the power of the federal government into the lives of people when you're investigating crimes. To think about the power of the federal government going into doctor's offices and into the intimate details and decisions of medical care, I have to say, as a former prosecutor, is frightening.

The federal statute has the same flaws as the Nebraska law. The Act is so vaguely worded – because they didn't do the simple thing and use medical terms but used the political soundbite – that it covers abortions as early as 12 to 15 weeks, and it covers the majority of second-trimester abortions. And there's no health exception as promised by Senator Santorum. All the district and circuit courts found it to be unconstitutional. And they did so because they could easily follow the Supreme Court's established law. So if the Supreme Court reads its case law as well as the lower courts did, this should be an easily decided case.

This law, this political sound-bite, is part of the agenda to overturn Roe v. Wade. The Court should be guided not by the changing political winds, but by a higher principle, the protection of individual rights. The Supreme Court in this case should send a clear message to Congress that settled law, and particularly settled law for 30 years going back to Roe that established a bright line rule that pregnant women's health may not be subordinated to opposition to abortion. That should be affirmed.

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