“[T]he Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of ‘the rule of law’ and the ‘principles of stare decisis.’. . . In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court.” — Dissent at 24

Gonzales v. Planned Parenthood

On April 18, 2007, in a 5-4 decision, the Supreme Court upheld the federal “Partial-Birth Abortion Ban Act of 2003.”  The ruling construes broadly the range of abortions that the act bans; retreats from an unbroken line of precedent that has held that, in any abortion regulation, a woman’s health must remain the paramount concern; and employs broad language to describe the state interest that justifies these holdings. 

The majority opinion was written by Justice Kennedy and was joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito.  Justices Thomas and Scalia filed a concurring opinion, reiterating their view that Roe v. Wade should be entirely overruled.  Justice Ginsburg authored the dissenting opinion, which was joined by Justices Stevens, Souter, and Breyer.

Scope of the Ban

The court’s ruling does not significantly limit the scope of what the act bans, despite the testimony of leading medical experts from major medical schools that the act will ban abortion methods in the early second trimester that doctors say are among safest and best to protect their patients' health.

Health Exception

The court explained that “whether the Act creates significant health risks for women has been a contested factual question” and “both sides have medical support for their position.”  Opinion at 31. 

In Stenberg v. Carhart, the court held that if there is a “division of medical opinion” and “substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health,” there must be a health exception.  530 U.S. 914, 937-38 (2000).

In today’s opinion, while the court did not explicitly overrule Stenberg, it answered this question in an entirely different way.  It said:

“Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. . . . The medical uncertainty over whether the Act’s prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden.”

Opinion at 34.  Thus, the court retreated from a rule of law that, in the face of medical disagreement, there must be a health exception, and adopted a different rule: in the face of medical disagreement, legislatures can decide whether or not to include a health exception.

The court added that this result “is consistent with Casey, which confirms the State’s interest in promoting respect for human life at all stages in the pregnancy.”  Opinion at 33.

The court also noted that “[a]lternatives are available to the prohibited procedure” (Opinion at 34) and “[p]hysicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures.” Opinion at 33. 

The court left open that the act could be challenged “if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used.”  It is not clear from the court’s ruling how such a challenge could, as a practical matter, be litigated.  It is clear that the court has retreated from 30 years of protection afforded to women’s health.

Government Interest

In the ruling, the court took an expansive approach toward the state interest that may justify abortion restrictions.  The court said that striking down the act would “repudiate[]” the “premise central to [Casey’s] conclusion that the government has a legitimate and substantial interest in preserving and promoting fetal life.”  Opinion at 14.

The court also said that “[t]here can be no doubt the government has an interest in protecting the integrity and ethics of the medical profession.”  Opinion at 27. 

Therefore, the court concluded:

“The … premise, that the State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, cannot be set at naught by interpreting Casey’s requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer.  Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.”

Opinion at 27-28. 

The court, however, did not stop at recognizing these state interests, which have never before been used to justify restricting access to abortion.  It went further, with the following language discussing issues not briefed by any of the parties to the litigation:

“Respect for human life finds an ultimate expression in the bond of love the mother has for her child.  The Act recognizes this reality as well.  Whether to have an abortion requires a difficult and painful moral decision. . . . . While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. . . . Severe depression and loss of esteem can follow.

“In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails.  From one standpoint this ought not to be surprising.  Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. . . .

“It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. . . . The State has an interest in ensuring so grave a choice is well informed.  It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.

It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions.  The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand.  The State’s interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion.”

The Dissenting Opinion

Calling the decision “alarming,” (Dissent at 3) the dissenters recognized that the court’s decision flies in the face of 30 years of Supreme Court precedent making clear that restrictions on abortion must include an exception for women’s health.  It explained: “for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.”  Id.

Notably, the dissent states that the majority’s decision “refuses to take Casey and Stenberg seriously” and “retreat[s] from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman’s health.”  Dissent at 3. 

In addition to flouting well-established Supreme Court precedent, the dissent explains that the majority’s decision gives “short shrift” to “the weight of the evidence” (Dissent at 12) demonstrating that “intact D&E is safer than alternative procedures and necessary to protect woman’s health” (Dissent at 9) and, instead, offers “flimsy and transparent justifications” for upholding a ban on intact D&E without a health exception (Dissent at 13).

In criticizing the majority’s discussion of the state’s interests justifying the ban, the dissent recognizes that “the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.”  Dissent at 17.

Justice Ginsburg also criticizes “the Court’s allowance only of an ‘as-applied challenge in a discrete case’,” pointing out that:

“Even if courts were able to carve-out exceptions through piecemeal litigation for ‘discrete and well-defined instances,’ women whose circumstances have not been anticipated by prior litigation could well be left unprotected.  In treating those women, physicians would risk criminal prosecution, conviction, and imprisonment if they exercise their best judgment as to the safest medical procedure for their patients.  The Court is thus gravely mistaken to conclude that narrow as-applied challenges are ‘the proper manner to protect the health of the woman.’”

Dissent at 23.

Justice Ginsburg’s dissent does not address the majority’s holding about the breadth of the ban.  However, the dissent’s conclusion recognizes the reality of the new Supreme Court.  It explains:

“[T]he Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of ‘the rule of law’ and the ‘principles of stare decisis.’. . . In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court.”

Dissent at 24.

Women's Stories

Below are autobiographical accounts of individual women who obtained abortions during the second trimester of pregnancy to protect their health, as told to Planned Parenthood Federation of America (PPFA) and the Institute for Reproductive Health Access (IRHA).  These testimonials were shared during in-person interviews, during telephone conversations, by e-mail, and in letters by women who responded to an invitation from PPFA or IRHA to speak out against the ban.

The stories provide a unique window into why some women have second-trimester abortions, and real-life examples of who these laws may reach.  To protect the privacy and safety of these women and their families, we refer to them by first name only.  Donna and Kim shared their story with PPFA. Catherine, Sarah, Amanda and Melissa shared their stories with the Institute for Reproductive Health Access.*

Donna

My health was at risk, but they didn’t know why. I guess one of the biggest health risks at the time was that I kept bleeding, but since they didn’t know why I was bleeding they didn’t know how to stop it. But losing the blood all the time and bleeding so much I didn’t feel healthy and I was very concerned about giving birth to a baby that would die.

Finally, at approximately 19 weeks in my pregnancy, although the situation was not any clearer, I was getting sicker and was not even half way to term, I, along with my loved ones and medical providers, decided to terminate the pregnancy.
 
In hind sight, it was determined that my condition was a placental abruption, one of the causes of maternal death because an embollism can form and cause a lethal blood clot. 
 
The biggest, problem, though, is that NOTHING was clear in advance.  Only in hindsight did things become somewhat clearer.  It was such a difficult time, to make such a life altering decision and feel like I did not have all of the information.  To have a politician telling the doctor what is the best course of medical action for a patient is just ridiculous. There’s no way to be able to decide that on a sweeping basis; it’s so individual. It’s so hard to imagine that someone who doesn’t know me … my family, my friends — they couldn’t even make this decision for me. To think that someone who I didn’t even know, who’d never met me would be able to decide this and then decide the fate of the doctor.

Kim

In February 2002, my husband and I were happily expecting our second child.  Up to this point, week 17 of my pregnancy, everything seemed to be progressing normally and we were all but certain that the results of my amniocentesis would be fine.  And then we received devastating news.  The fetus that I was carrying had an extra 13th chromosome, a condition called Trisomy 13, and, was horribly malformed.  A sonogram revealed that, among other visually- disturbing deformities, the brain, heart and kidneys could not support life outside the womb for more than a very limited period of time, if even that.  The baby we very much wanted and were so looking forward to having and raising was not viable.  And no surgical procedure, medication or special therapy could change this fact.  Faced with this heart-wrenching reality, I knew that I would not be able to carry the fetus to term —- to have every kick and movement remind me that we would not have a child at the end of the pregnancy and then to see the baby die a painful death, if he even made it to term.

Given my medical history, my doctors, and the doctors and empirical sources that I consulted for second opinions, were of the view that the D&E would be the safest medically and would also have a better chance of preserving my ability to get pregnant again in the future.

Beyond weighing which option was the safest medically, there was also a mental-health aspect to my decision.  Already in an extremely fragile state of mind, it would have broken me emotionally and spiritually to be induced and go through the delivery process.  Being surrounded by mothers with their new babies and not having my own to hold, love and take home would have been that much more emotionally traumatizing.

Melissa

I have Lupus. The first 12 weeks or so were pretty normal. Then I was put on bed rest… I had discharge, cramping ….  I was real sick — with the disease and complications. Practically every complication that I could have — pre-term labor, starting first trimester, cramping, shortening of the cervix all the way through …

I was put on bed rest for another week and told to drink fluids constantly but then I started hemorrhaging …. They put me on bed rest in the hospital, upside down, with daily ultrasound and IV calming medication but my fluid kept getting lower. About 5 days later, the doctor said I had to make a decision … The baby was not viable. The doctor said the baby could not survive without fluid. I begged for another day. This was a Catholic medical center …. The doctor said I’d have to go elsewhere to terminate. I was in a slight Llupus flare-up …

They wouldn’t transfer me to another hospital. They wouldn’t make any arrangements. I made the arrangements myself. I called [the local clinic] and was blessed to speak [to the counselor there].

Sara

I had early onset preeclampsia… My blood pressure which is usually 110 over 70 was floating around 220 over 135. And all the attendant problems — the kidneys, the water retention were a nightmare …. And there was great risk of stroke or seizure associated with the blood pressure … And I also had the placenta previa — the placenta blocking the birth canal — and the placenta was also abnormally massive so even if my body had tried to spontaneously end the pregnancy it would have created a different set of problems for me. If that placenta was ruptured there was a great chance that I would have massive hemorrhaging or — so we didn’t have many options. And the preeclampsia was just gonna get worse … My child was dying and I was really sick … Eventually they … gave me the option to do D and E, dilation and extraction … [W]e did the D&E later that afternoon.

Amanda

Unfortunately, it was quickly made clear that it was too dangerous to continue my pregnancy. The hygroma was too large on the baby’s head. It was a guarantee that she was going to die. The only question was when. I tried to fight it … If I waited and let her die naturally I would have risked my own health and possibly my ability to have any future children ….  All possibilities ended with the same eventual outcome. My decision ended her suffering and kept us from prolonging the loss that was inevitable.

Catherine

Catherine and her husband learned during the 14th week of pregnancy that their child had Trisomy 13 and that the pregnancy was threatening her health.

[I]f I tried to carry to term and suffered a late-term fetal death or miscarriage, there was a serious chance of complications for me. I might hemorrhage [sic], I might get an infection, the trisomy might interfere with the development of the placenta and leave me deathly ill. My OB told me, in very plain language, that if I carried the pregnancy to term, there was a very high chance that I would never bear another child.

There was no good choice. There was no hope of a healthy child. I could have an abortion, or I could see how my luck went carrying this doomed pregnancy to term and risk my life and future fertility, and I elected to have an abortion.

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*A video of Donna's interview is available at: http://www.saveroe.com/issues/abortionaccess/federalabortionban/testimonials/donna

Kim's statement was provided in writing to Planned Parenthood of New York City and is on file at Planned Parenthood Federation of America, 434 West 33rd Street, New York, New York.

Melissa and Sarah shared their stories with IRHA in telephone interviews. Catherine submitted her story to IRHA by letter. Amanda shared her story with IRHA via e-mail. They are available at http://www.federalabortionban.org/amicus_briefs/amicus-brief-womens-stories.pdf. All stories gathered by IRHA are on file at the New York office of the law firm Orrick, Herrington & Sutcliff LLP, 666 Fifth Avenue, New York, New York.

These women did not receive compensation for sharing their stories.

For more information, please contact the Planned Parenthood Federation of America Media Department at 202-973-4882.