FEATURE | summer 2007
The Carhart ruling chills doctors and shows no concern for women's health
By Allison Stevens
Dr. Paul Blumenthal was preparing to
perform an abortion for a woman who was 22
weeks pregnant and carrying a fetus with a congenital
anomaly. A professor of obstetrics and gynecology at
Stanford University, Blumenthal would have preferred to
use a particular procedure he believed was the safest and
most medically appropriate for the woman. But instead of
going with his best medical instincts, he felt it necessary to
recommend an alternative method that for the woman was
more dangerous, more time-consuming and more painful.
The reason for the change? Blumenthal feared that by
performing a “dilation and evacuation”—a quick, safe and
legal procedure—he might be perceived as violating a federal
law passed in 2003 that the Supreme Court has just
ruled constitutional. It bans intact dilation and evacuation,
a variant on the legal method, in which a physician partly
delivers a fetus before completing the abortion procedure.
Passed by a Republican-controlled Congress and signed into law by President Bush, the ban has not been enforced
until now, as it was stayed in lower courts by successful lawsuits
from Planned Parenthood, the ACLU and the Center
for Reproductive Rights on behalf of the National Abortion
Federation, Dr. LeRoy Carhart and other physicians. They
challenged the ban for its vague language, asserting it could
apply to other procedures, and because it lacked an exception
for the health of the woman—a precedent established
more than three decades ago in Roe v. Wade and repeatedly
reaffirmed in court cases since then.
This April, in the first abortion case since the retirement
of legendary centrist Justice Sandra Day O’Connor,
the U.S. Supreme Court—whose conservative flank is
now bolstered by Bush appointees Chief Justice John
Roberts and Justice Samuel Alito—ignored precedent and
overturned lower-court decisions in voting 5-4 in favor of
the abortion procedure ban. The ruling in Gonzales v.
Carhart revealed the rightward shift of the court in the absence
of O’Connor, who had joined a 5-4 majority in 2000
that struck down a similar state ban because it lacked the
requisite maternal health exception. With Alito now in
O’Connor’s seat, the court ruled the other way.
The law’s vague language has had a chilling effect:
Doctors like Blumenthal are shying away from performing
procedures that remain legal because they fear they
may unintentionally violate the law and face criminal
penalties. Indeed, physicians found guilty of breaking
the law can be sentenced with fines and prison terms of
up to two years. “Ever since the Supreme Court decision
came down, we’ve made efforts to steer clear of crossing
the line, or even the perception of crossing the line,”
Blumenthal says.
The ramifications of the decision do not end there.
Advocates on both sides of the issue see the court’s departure
from precedent—and the opinion’s hostile tone
toward abortion rights—as an invitation to anti-choice
lawmakers around the country to continue their efforts
to chip away at access to abortion and perhaps even
criminalize the procedure altogether. Writing for the
Supreme Court majority, Justice Anthony Kennedy peppered
his ruling with language sympathetic to the antichoice
position—a point noted by Justice Ruth Bader
Ginsburg in her biting dissent. In the ruling, Kennedy
refers to obstetrician-gynecologists as “abortion doctors”
and describes a fetus as an “unborn child”—terms
that Ginsburg said reveals the court’s “hostility” to the
fundamental right to abortion.
Conservative legislators are already taking the high
court’s bait: On April 19, one day after the court handed down its ruling, a pair of state legislators in Louisiana introduced
“copycat” versions of the federal abortion ban
that would carry stiffer penalties (including prison terms
of up to 10 years for physicians). Lawmakers in Michigan
and North Carolina also introduced anti-choice measures
in the weeks after the court announced its decision in the
case, and the Iowa state Senate amended a health budget
bill to prohibit state funding of the kind of abortion procedures
banned by the Supreme Court. That provision
died before becoming law.
Several other states enacted anti-choice laws in the aftermath
of the decision: Georgia passed a measure requiring
abortion providers to offer women the opportunity to
see the fetus in an ultrasound before undergoing an abortion;
North Dakota backed a nearly complete abortion
ban that will take effect if the Supreme Court overturns
Roe v. Wade; and Oklahoma passed a bill banning most abortions
in state-funded hospitals. Meanwhile, the Missouri
legislature approved a law requiring certain abortion clinics
to meet more burdensome and more costly operating
standards—which could force at least one clinic in the
state to shut down if the governor signs it.
But the real legislative onslaught won’t come until next
year, experts say. That’s because most state legislatures
had already adjourned for the year or passed deadlines
barring introduction of new legislation. “I think we’re going
to see again a flood of legislation at the state level in
which they seek to add additional hurdles to women who
are seeking abortion,” said Nancy Northup, president of
the Center for Reproductive Rights.
Clarke D. Forsythe, president of Americans United for
Life, a group in Chicago that opposes abortion rights,
predicted as much in a May 1 memo to supporters. He
wrote that the decision “opens the door to more aggressive
regulation of abortion” and specifically encouraged
what he called “informed consent” restrictions. These
types of laws, known by opponents as “biased counseling”
restrictions, can even order doctors to give medically specious,
state-scripted information to women about purported
dangers associated with abortion and a fetus’
ability to feel pain. Often, these laws are coupled with
mandatory delays or waiting periods, which add to the
cost of the procedure for women who need to pay for
overnight accommodations, child care and transportation.
Also predicted to be introduced in legislatures next year
are a wave of state versions of the federal abortion ban, efforts
to eliminate exceptions for a woman’s health from
existing laws, and some outright bans on abortion that
could be used as legal vehicles to reverse Roe v.Wade.
The decision has emboldened some anti-abortion extremists.
Signs of their renewed ardor came during two
recent episodes of violence at clinics that provide abortion
services. In April, a bomb was found in the parking lot of
the Women’s Health Center in Austin, Texas, and in May
a fire was set at a Planned Parenthood family-planning
clinic in Virginia Beach.
But the Carhart ruling has also galvanized supporters of
abortion rights. On the day after the decision, federal lawmakers,
led by Sen. Barbara Boxer (D-Calif.) and Rep.
Jerrold Nadler (D-N.Y.), reintroduced the Freedom of
Choice Act (FOCA), a measure that would codify in federal
law the rights established in Roe v.Wade. If passed, the
measure would likely lead to court challenges that could
overturn the Carhart decision. Seven states—California,
Connecticut, Hawaii, Maine, Maryland, Nevada and
Washington—have already passed their own versions of
the Freedom of Choice Act. The measure was also introduced
in Rhode Island.
But the federal version, which would guarantee access
to abortion across the land, is not likely to win passage
anytime soon. Even though Congress is now controlled
by Democrats, a party that officially backs abortion rights,
the House of Representatives is still controlled by opponents
of abortion: Of the 435 members of the House, a
slight majority currently opposes abortion rights and another
10 percent of the chamber has a mixed record on the
subject and supports some restrictions, according to
NARAL Pro-Choice America. In the Senate, only about
one-third of the members have strong records in support
of abortion, and nearly half strongly oppose it; the rest
have mixed records on reproductive rights and family
planning, including Senate Majority Leader Harry Reid.
Even if the Freedom of Choice Act were to clear
Congress, it would face certain death in the White
House. Bush made that clear after the Supreme Court
decision, when he issued a pre-emptive threat to veto
“any legislation that weakens current federal policies
and laws on abortion or that encourages the destruction
of human life at any stage.”
Pro-choice advocates can take some solace in the fact
that they now have a staunch ally in the most powerful
leader in the legislative branch. Speaker Nancy Pelosi— and many of her colleagues on House congressional committees—
can be counted on to bottle up any anti-choice
measures that might come before Congress. That will put
at least a temporary stop to the sort of abortion restrictions
that were enacted during the 12 years that Congress
was controlled by religious conservative Republicans.
But proactive legislation protecting access to abortion
will not win passage until voters send more pro-choice
representatives to the Capitol and the White House. Until
then, there is little hope for bills that would increase access
to abortion (such as providing coverage of the
procedure under Medicaid) or protect it by enshrining
abortion rights in federal law.
Until then, there is also uncertainty over whether the
basic right to abortion will be upheld by the Supreme
Court. Currently, four justices are assumed to oppose
abortion (Roberts, Alito, Antonin Scalia and Clarence
Thomas), and one—Kennedy—was considered a swing
vote until he sided with them in Carhart. Whether he supports
a complete reversal of Roe v. Wade is unclear, but that
may not matter if another staunch opponent of women’s
rights is appointed to the bench. Alarmingly, the two oldest
members of the court—Justices John Paul Stevens, 87,
and Ruth Bader Ginsburg, 74—are also strong backers of a
woman’s constitutional right to privacy.
The importance of elections, and their implications for
the court, is a concept well understood by the political
Right, which routinely uses a candidate’s stance on abortion
as a litmus test in primary elections. That is evident in the
race for the Republican presidential nomination, where
front-runner Rudy Giuliani of New York faces a mutiny
from the party’s conservative base now that his support for
abortion rights has come under heavy media scrutiny.
Unlike the Right, Democratic candidates do not always
place a high degree of importance on the issue of abortion
when campaigning for votes. Feminists tried to make
abortion rights an issue in the 2000 elections, when prochoice
advocates widely circulated campaign buttons at
the Democratic National Convention in Los Angeles that
blared: “It’s the Supreme Court, Stupid!”—a riff on the “It’s
the Economy, Stupid!” catchphrase coined by Democratic
strategist James Carville.
But both Al Gore and Bush downplayed abortion: Gore did not highlight his pro-choice position in his campaign,
and Bush obfuscated his anti-abortion position, presenting
a moderate front by using such politically soft terms as “culture
of life,” a phrase that allowed him to convey opposition
to abortion without coming out directly for overturning Roe
v. Wade. That stance allowed him to mollify social conservatives
without alarming average voters, who also may have
taken some relief when, in the days before Bush’s first inaugural,
Laura Bush appeared on NBC’s Today Show and said
she believed Roe should not be overturned.
Four years later, abortion-rights advocates again
sounded the alarm, warning of the looming vacancies on
the high court that could endanger access to abortion.
Once again, both presidential candidates played down the
issue of abortion, and voters—a majority of whom back
the right to abortion—re-elected Bush and strengthened
the Republican majorities in the House and Senate,
paving the way for the appointments—and subsequent
confirmations—of Roberts and Alito.
“The tragedy is that neither Gore nor [John] Kerry
chose to make it a major issue in their campaigns,” says Kim
Gandy, president of the National Organization for
Women. “Bush would never have been elected if they had.”
In the 2006 elections, pro-choice forces fought back.
Voters selected more pro-choice lawmakers, thus picking
up seats in Congress; turned back an effort to ban abortion
in South Dakota; and rejected initiatives that would
have required parental notification in California and Oregon.
And in a stunning defeat for abortion opponents,
voters in Kansas ousted a zealous anti-choice attorney
general who had subpoenaed the records of 90 women
and girls who had abortions in order to scour them for evidence
of illegal procedures.
“When choice was on the ballot in 2006, pro-choice
voters prevailed,” says NARAL Pro-Choice America
president Nancy Keenan. That momentum will only
grow over the next two years, now that the Carhart decision
has put the threat to abortion in stark relief, she
says: “The climate is changing a lot for us. The threat is
much more real now. …People are concerned about the
Supreme Court and they are concerned about what the
next administration will look like. They’re starting to
connect the dots.”
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