Practical Matters

The ban, passed by Congress and signed by President Bush in 2003, criminalizes abortion procedures frequently employed in the second trimester of pregnancy that doctors say are safe and often the best to protect women's health.  As Justice Ruth Bader Ginsburg said in her dissent, “… the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.”

Many other safe abortion procedures remain legal.  Planned Parenthood medical professionals and lawyers are analyzing the decision carefully to determine what changes in abortion care may be necessary.  Planned Parenthood affiliate health centers across the country will continue providing women with the best care possible within the confines of this ban.  The ban will take full effect four to six weeks from the date of the ruling — mid-May to early June.

What Does it All Mean?

The true implications of this ruling rest in the details. 

The ruling not only upheld the banning of some abortion procedures without an exception for women’s health, but also makes it easier for states, as well as the federal government, to further limit a woman’s ability to choose abortion.  Justice Anthony Kennedy, who authored the majority opinion that upheld the ban, wrote that "when medical uncertainty persists. ... The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty."  This expansive approach to a state’s right to restrict and limit abortion is one of the most disturbing parts of the opinion.  Roger Evans, PPFA senior director, Public Policy Litigation and Law, explained, “This aspect of the court’s holding flatly departs from prior holdings that consistently held that, where there is any doubt, a woman’s health must be protected.  Now, the court is saying that when there is any doubt, the legislature, not the doctor, has the final say.”  This shift will likely spur state efforts to enact new abortion restrictions.

Such plans are already underway in certain parts of the country.  In Nebraska, for example, state Sen. Mark Christensen (R) said on Wednesday that he plans to introduce a total abortion ban, possibly in 2009, when a new state legislature is in place.  His colleague, Sen. Tom Carlson (R), said, “It's an encouraging indication the Supreme Court is willing to uphold a restriction on abortion and we should follow that up.”

Equally alarming is the court’s endorsement of arguments, commonly made by anti-choice groups, that suggest women need to be protected from making abortion decisions they might not fully understand and that cause “anguish.”  Justice Ginsburg objected strongly, saying, “[T]his way of thinking reflects ancient notions of women’s place in the family and under the Constitution — ideas that have long since been discredited.”  The implications of such language remain to be seen.

What About Roe?

The ruling departs dramatically from one of the core holdings of Roe, that no abortion restriction may endanger a woman’s health.  The ruling does not directly challenge the other core holding of Roe, that the Constitution protects a woman’s right to choose abortion.  However, the ruling is a clear signal to those who seek to dismantle the 34-year-old decision that the court will be receptive to ever more intrusive efforts to limit access to abortion, thus further undermining that core holding of Roe.  Shortly after the ruling, Roberta Combs, president of the Christian Coalition of America, said, “With today’s Supreme Court decision, it is just a matter of time before the infamous Roe v. Wade decision in 1973 will also be struck down by the court.”

New laws that directly challenge the constitutionality of Roe, laws not unlike the abortion ban that was recently defeated in South Dakota, are likely to be introduced in the states so they can ultimately be decided by a Supreme Court that has shown itself to be antagonistic to choice.

Still, there is some question as to whether Justice Kennedy would roll back the right to choose outright — unlike his colleagues, Justice Antonin Scalia and Justice Clarence Thomas, who have consistently advocated for Roe to be overturned. 

Eyes on the Prize

Pro-choice advocates and politicians have been laying the groundwork to fight decisions such as the one the court handed down on Wednesday.  There are vital efforts underway to protect access to abortion services at the state and federal levels, including the introduction of the Freedom of Choice Act (FOCA), which would protect a woman's right to choose by federal statute.  The day after the decision, supporters of FOCA held a press conference to call attention to its introduction and drive home its importance. 

Planned Parenthood, meanwhile, continues to move forward on multiple fronts.  “Planned Parenthood is committed to the health and safety of our patients,” said Vanessa Cullins, PPFA vice president for medical affairs, “and we will continue to provide high-quality care, including abortion services, to our patients.” 
Our activists are organizing and speaking out across the country, and our advocates on Capitol Hill are shifting into high gear.  Learn how you can support our efforts to protect women’s health and safety.