The Supreme Court:  Disregarding Thirty-four Years of Precedent Protecting Women's Health

On April 18, 2007, the Supreme Court upheld the federal abortion ban signed into law by President Bush in 2003.   The federal abortion ban outlaws a second-trimester procedure that doctors say is often the safest and among the best for women's health.  The Supreme Court upheld the ban even though it does not include an exception to protect a woman's health.  This flies in the face of 34 years of Court precedent that a woman's health should be the paramount concern. 

1973:  Roe v. Wade, 410 U.S. 113

          Nature of Case: Challenge to a Texas law prohibiting abortions except to save the woman's life.

          Women's Health Holding: The court struck down the law because the right to privacy extends to the decision of a woman, in consultation with her physician, to terminate her pregnancy.  The court held that the state's interest in fetal life becomes compelling at viability, and thus that "[f]or the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion."  410 U.S. at 164-65.  However, even in the post-viability time frame, the court held that an abortion ban must contain an exception for "where [the abortion] is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."  Id.

1976:  Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52

          Nature of Case: Challenge to a Missouri law requiring, among other things, that no second-trimester abortions be done by saline amniocentesis.

          Women's Health Holding: The court held that the ban on saline amniocentesis abortions is unconstitutional because it "would prohibit the use of a method which the record shows is the one most commonly used nationally by physicians after the first trimester and which is safer, with respect to maternal mortality, than even continuation of the pregnancy until normal childbirth.  Moreover, as a practical matter, it forces a woman and her physician to terminate her pregnancy by methods more dangerous to her health than the method outlawed."  428 U.S. at 78-79. 

1979:  Colautti v. Franklin, 439 U.S. 379

          Nature of Case: Challenge to provisions of Pennsylvania law requiring physician intending to perform an abortion to determine that the fetus is not viable.  If the physician finds that fetus "is or may be viable," he or she is required to exercise the degree of care in performing abortion that would have been exercised if a live birth were intended.

          Women's Health Holding: In holding the law unconstitutionally vague, the Supreme Court stated that "after viability, the State, if it chooses, may regulate or even prohibit abortion except where necessary, in appropriate medical judgment, to preserve the life or health of the pregnant woman."  439 U.S. at 386-87.  In discussing the failures of the Pennsylvania law, it noted that "[t]he statute does not clearly specify . . . that the woman's life and health must always prevail over the fetus' life and health when they conflict. . . . Consequently, it is uncertain whether the statute permits the physician to consider his duty to the patient to be paramount to his duty to the fetus, or whether it requires the physician to make a 'trade-off' between the woman's health and additional percentage points of fetal survival.  Serious ethical and constitutional difficulties, that we do not address, lurk behind this ambiguity.  We hold only that where conflicting duties of this magnitude are involved, the State, at the least, must proceed with greater precision before it may subject a physician to possible criminal sanctions."  439 U.S. at 400-01.

1980:  Harris v. McRae, 448 U.S. 297

          Nature of the Case: Challenge to the Hyde Amendment's ban on the use of federal Medicaid funds for medically necessary abortions except those necessary to save the woman's life.

          Women's Health Holding: Although the court upheld the Hyde Amendment, holding that government has no obligation to provide funds for medically necessary abortions, it recognized that "even the compelling interest of the State in protecting potential life after fetal viability was held to be insufficient to outweigh a woman's decision to protect her life or health."  448 U.S. at 316.

1983:  Planned Parenthood of Kansas City, Missouri v. Ashcroft, 462 U.S. 476

          Nature of the Case: Challenge to a Missouri law requiring, among other things, that two physicians be present at the abortion of a viable fetus.

          Women's Health Holding: In the controlling opinion, Justice Powell held that the second physician requirement was constitutional because Missouri law exempted "emergency situations . . . where the woman's health may be endangered by delay."  462 U.S. at 485 n.8 (Powell, J.).

1986:  Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747

          Nature of the Case: Challenge to Pennsylvania's 1982 Abortion Control Act requiring, among other things, the presence of a second physician at post-viability abortions and that physicians performing post-viability abortions use the method most likely to result in fetal survival unless it would cause "significantly" greater risk to a woman's life or health.

          Women's Health Holding: The court struck down the second-physician requirement because it does not "contain an exception for the situation where the health of the mother was endangered by delay in the arrival of the second physician."  476 U.S. at 770.  The court also ruled that the post-viability method requirement was unconstitutional because it "failed to require that maternal health be the physician's paramount consideration."  476 U.S. at 768-69.

1992:  Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833

          Nature of the Case: Challenge to provisions of Pennsylvania's 1989 Abortion Control Act, including the sufficiency of the medical emergency exception.

          Women's Health Holding: The Supreme Court reaffirmed that the Constitution protects a woman's right to choose and stated that "[w]e also reaffirm Roe's holding that 'subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'  Roe v. Wade, 410 U.S. at 164-65."  505 U.S. at 879.  The court found that the medical emergency provision was adequate because it did not "foreclose[] the possibility of an immediate abortion despite some significant health risks."  505 U.S. at 880.  The court explained that "the essential holding of Roe forbids a State to interfere with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health."  505 U.S. at 880 (citations omitted).

2000:  Stenberg v. Carhart, 530 U.S. 914

          Nature of Case: Challenge to Nebraska ban on so-called "partial-birth abortion."

          Women's Health Holding: The court held the ban unconstitutional because it lacks an exception for situations when banned procedures are necessary to protect the woman's health.  It explained that "[t]hree established principles determine the issue before us. . . . 'subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'"  530 U.S. at 921 (citations and quotations omitted).  "[T]his Court has made clear that a State may promote but not endanger a woman's health when it regulates the methods of abortion."  530 U.S. at 931 (citations omitted).  "[W]here substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health, Casey requires the statute to include a health exception when the procedure is 'necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'"  530 U.S. at 938 (citation and quotation omitted).

2006:  Ayotte v. Planned Parenthood of Northern New England, 126 S.Ct. 961

          Nature of case: Challenge to a New Hampshire parental notice law that does not contain an exception for medical emergencies that threaten the minor's health.

          Women's Health Holding: The court did not disturb the lower courts' ruling that the statute was unconstitutional for lack of a medical emergency exception because "our precedents hold, that a State may not restrict access to abortions that are 'necessary, in appropriate medical judgment, for preservation of the life or health of the mother.'"  126 S.Ct. at 967 (citations and quotations omitted).  "New Hampshire has conceded that, under this Court's cases, it would be unconstitutional to apply the Act in a manner that subjects minors to significant health risks."  126 S.Ct. at 966-67.