Wednesday, April 18, 2007
There was broad agreement among legal experts that the cases challenging the federal abortion ban were not likely to result in Roe v. Wade being overruled. Predictably, the Court did something much more insidious. To most of the public, the decision will seem like one narrowly addressing a seldom-used, controversial abortion procedure. But there is a great deal more at stake. In one fell swoop, the Court seems to have lowered the status of the right to abortion even further than where it was left after Planned Parenthood v. Casey; expanded the range of state interests that can justify abortion restrictions; done away with the principle that abortion restrictions are facially unconstitutional if they endanger women's health; suggested that as-applied challenges are the only appropriate vehicles for challenging abortion restrictions; and indicated that legislatures are free to regulate the details of how medical procedures are performed and to force doctors to perform medical procedures in ways they believe are riskier for their patients.
In this post, I address the last of these, the significance of the Court's sanctioning of legislative intrusion into medical decisionmaking.
In order to uphold the federal ban while purporting not to disturb the Court's ruling in Stenberg v. Carhart, in which the Court struck down a similarly worded state statute, the majority needed to find the Achilles' heel in that decision. The Court had just recently issued a unanimous decision in Ayotte v. Planned Parenthood, in which the Court did not take issue with the principle that abortion restrictions are unconstitutional if they endanger a woman's health. The majority thus had to find a way to make a health exception seem unnecessary in this particular instance. How did it do that, in the face of so much medical authority supporting the safety of the banned methods? By flipping the relevant standard from Stenberg v. Carhart on its head.
In Stenberg, the Court ruled -- not that all abortion procedure bans require a health exception -- but that a health exception is required when a banned procedure may be safer than other methods. As I wrote in Winter Count: Taking Stock of Abortion Rights After Casey and Carhart, this appeared to invite inquiry into the safety of banned procedures as a necessary step to deciding whether a health exception is necessary. But such an inquiry necessarily raises the question how much evidence of the banned procedures' safety is needed. Must there be virtual unanimity within the medical community of a procedure's safety advantages? Whose opinion matters -- those who perform abortions regularly, or those who choose not to for ideological reasons? How should a court balance these differing opinions?
Stenberg answered this by holding that where "substantial medical authority" supports the safety benefits of a procedure, any ban on that procedure must include a health exception. Today's decision, however, suggests the opposite. As long as there is some medical opinion that a banned procedure is not needed to preserve women's health, legislatures are free to ban it without a health exception, even when substantial medical authority regards it as advantageous.
It is hard to envision any medical procedure for which there is not some controversy over its effectiveness. Commonplace in medicine generally, such controversies are inevitable in the emotionally volatile abortion arena. With the intact D&E abortion procedure, the scales of medical authority were sharply tipped toward the safety of the procedure, but a small, vocal, and ideologically driven minority, led by doctors who performed few or no abortions, persisted in claiming that the procedure is never needed. Those dissenting voice were enough to satisfy the Court in today's decision that a virtually total ban on the procedure was permissible. With the Court's new interpretation of Stenberg, it is hard to envision any intrusion into abortion practice that the Court would not countenance, unless it made abortions essentially unavailable at some stage of pregnancy.
As I wrote in my Winter Count article, it was troubling enough that the Stenberg Court conditioned a health exception upon a showing of "substantial medical" authority. The opinion seemd to assume unrealistically that improved safety in medicine magically occurs overnight, with a "substantial" portion of the establishment instantly signing on to a new method. Abortion safety, and indeed the safety of most medical procedures, would not be what they are today if legislatures had been permitted to ban every new method before "substantial authority" demonstrated its benefits. But today's opinion takes this problem even further, seemingly allowing bans on procedures, without health exceptions, if there is any disagreement as to safety advantages at all.
Disturbingly, the Court felt free to disregard utterly the trial courts' findings that the banned methods carried safety advantages. In fact, it seemed far more interested in the findings of Judge Casey, the trial judge in the only one of the three federal challenges not before the Court. (Even Judge Casey found the ban unconstitutional, but his factual findings regarding the safety of intact D&E were the most equivocal of the three trial judges.) While the Court took care to note that "[u]ncritical deference to Congress' factual findings [was] inappropriate," it did not feel compelled to address whether, and in what way, the trial courts' findings, to which it should have deferred, were clearly erroneous.
In subsequent posts, I will address some of the other disturbing implications of the Court's decision.