Discussions on Abortion Ruling Center on Mother's Health

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The Supreme Court handed down a five to four decision in support of a regulation that bans so-called "partial birth" abortions. Many medical experts argue this decision prohibits a procedure that is sometimes necessary to protect the mother's health. Liane Hansen discusses the ruling's implications with Weekend Edition's legal commentator, Mimi Wesson.


The Supreme Court decided this past week to uphold a statute passed by Congress that banned the abortion procedure called intact dilation and extraction. While opponents of the procedure, which they call partial-birth abortion, declared victory, proponents of the original Roe v. Wade decision are concerned that this is the first step toward the elimination of a woman's legal right to obtain an abortion.

Now at the center of the discussion after the Court's decision is the health of the mother. And here to discuss that issue is WEEKEND EDITION's legal commentator, Mimi Wesson. Welcome back.

MIMI WESSON: Thanks, Liane.

HANSEN: Many medical experts argue that this decision prohibits a procedure that is sometimes necessary to protect the mother's health. Remind us of some history. Roe v. Wade held that any prohibition against abortion had to have an exception for the mother's health, correct?

WESSON: That's right and so did later decisions by the Court as well. The Congress, when it passed this recent statute forbidding the use of this one procedure, made a finding that there as a medical consensus that this procedure was never necessary to protect the mother's health.

Now Justice Kennedy, in the majority opinion that he wrote for the Court, admitted that this finding was erroneous. In fact, the prevailing medical view is that it is sometimes necessary for the mother's health. But Kennedy said that it was entitled to deference, this Congressional finding, because there was some disagreement in the medical community. In other words, because some doctors said that in their opinion, this procedure was no safer than other procedures that a statute allows.

And he also indicated that some deference had to be paid to the Court's moral and aesthetic findings that the procedure was gruesome and inhumane. That's a pretty striking contrast to Justice Blackman's opinion in Roe v. Wade, which insisted on deference to the medical and moral judgment of a woman and her doctor.

HANSEN: There's a procedural part of the Court's opinion that, although it's technical, may be important. Can you break it down for us?

WESSON: Yeah. The five justices in the majority held that future challenges to a regulation or a restriction on the availability of abortion had to be brought by someone whose personal circumstances made it clear that she would be hurt, that is, that her health would be threatened or her life endangered by the regulation. So it's not enough for some abortion provider who wants some clarification to guide her future practice to bring a lawsuit.

In practice, this restriction's likely to mean that the only acceptable plaintiff to challenge an abortion restriction in the future is a woman who's already pregnant or perhaps her doctor. So this technical limitation is likely to make these sorts of cases, challenging abortion restrictions, very difficult to bring and see through to a conclusion.

HANSEN: Justice Ruth Bader Ginsberg wrote a strong dissent. She was joined by Justices David Souter, John Paul Stevens, and Stephen Breyer. What were Justice Ginsberg's main points?

WESSON: It was a very passionate and angry dissent that she wrote, Liane. Among other things, she took note of the language that Justice Kennedy used, which she found partisan. For example, he talked about an abortion doctor instead of a physician or obstetrician; baby instead of fetus. He spoke of those doctors who had concerns about the safety of alternative procedures as having a preference or seeking convenience.

And another feature of the majority opinion that she really deplored was its suggestion - on the basis of just one friend of the court brief that was submitted - that many women experienced depression and disabling grief after choosing an abortion. So this was an alleged risk to the health of a woman that Justice Kennedy found to be one justification for limiting the availability of abortion.

So to Justice Ginsberg, Justice Kennedy has used the professed concern for a woman's health to limit abortion instead of - as in the past - as a reason to make it available to women who choose it. She found the suggestion that women can't be trusted to make this choice for themselves patronizing at best and reflecting a view of women more associated with the 19th century than the 21st.

HANSEN: So what do you expect as a result of this decision?

WESSON: Immediately, I expect some medical professionals who provide abortions after the first trimester to reconsider their willingness to do so. The unpredictability of how any medical procedure is going to go, the law's uncertainties - these may instill in them a fear of prosecution that may cause them to reconsider their commitment to providing this kind of abortion.

And I expected that in some state legislatures, efforts will be made to pass legislation imposing new restrictions on or even prohibiting nearly all abortions. I think one common sort of proposal will require women who seek even very early abortions to subject themselves to a sort of in-your-face description or depiction of the procedure and the developing fetus and the likelihood that they'll later experience some terrible regret.

Some of this legislation will pass, some probably won't. Some laws that pass will begin working their ways through the courts again if qualified plaintiffs can be found under the new technical rules. I think this issue is going to be with us for a very long time.

HANSEN: Mimi Wesson is a professor at the University of Colorado School of Law in Boulder. Thanks a lot, Mimi.

WESSON: A pleasure to be with you, Liane.

(Soundbite of music)

HANSEN: You're listening to NPR News.

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