Supreme Court Ruling Threatens Women's Health

By Amy Goodman, Democracy Now!. Posted April 19, 2007.

The Supreme Court handing down what's being called one of the biggest setbacks for the abortion rights movement in years. On Wednesday, the court voted 5-4 to uphold a ban on late-term abortion. The so-called Partial-Birth Abortion Ban Act was signed into law in 2003, but it had been held up by rulings from lower courts. The Supreme Court ruling marks the first time justices have agreed a specific abortion procedure can be banned. It's also the first time since Roe v. Wade that justices approved an abortion restriction that does not contain an exception for the health of the mother.

In her dissenting opinion, Justice Ruth Bader Ginsburg called the decision "alarming" and "irrational." She said, "[The ruling] tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists." She later continues, "[It] cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court -- and with increasing comprehension of its centrality to women's lives."

Amy Goodman discusses the implications of the ruling with Louise Melling, director of the Reproductive Freedom Project at the American Civil Liberties Union. As an attorney, Melling has appeared in federal and state courts around the country to challenge laws that restrict reproductive rights.

AMY GOODMAN: Louise Melling, welcome to Democracy Now!

LOUISE MELLING: Thank you very much.

AMY GOODMAN: Explain the significance of this ruling.

LOUISE MELLING: This decision, as you said, is devastating. It's incredibly significant. This is, as you commented on, the first time the court has upheld a restriction on abortion that lacks protections for women's health. This is the first time -- this is the first-ever federal law banning certain abortions, and the court has upheld that. This really is a decision that undermines a core principle of Roe that's been in place since 1973, that women's health must remain paramount.

AMY GOODMAN: Talk about the significance also of this majority, the 5-4 majority. with the new Chief Justice, John Roberts, with Samuel Alito, the two George W. Bush nominees to the Supreme Court, ruling with a majority against late-term abortion.

LOUISE MELLING: Well, what you see is a real shift right. In 2000, the Supreme Court considered a law that was also called a partial-birth abortion law, and the court struck that law. And in striking that law, what the court did was, there, as it had always, recognized women's health to be paramount. What the court did in 2000 was also say, we're going to listen to doctors, and where some doctors say that procedures that might be banned here are the safest for women's health, we will defer to those doctors, and there has to be a health exception to ensure that women's health is protected. And in that decision, the court also looked to, as you said, the American College of Obstetricians and Gynecologists view. ACOG is the leading medical organization for physicians who care for women during pregnancies. Now -- and that decision was 5-4 also, with O'Connor, Justice O'Connor, in the majority.

Now, seven years later, what's really different is you have two new members of the court. This is the first decision of the court on abortion since Justice O'Connor resigned, and you have a very, very significantly different holding.

AMY GOODMAN: So what are you planning? What is the ACLU, what are reproductive rights groups planning right now? Where do you see this going from here?

LOUISE MELLING: Well, I think, you know, first of all, it's alarming that the court isn't protecting women's health, so we're concerned about women's health. What's also alarming is that the court's decision has language that's so broad that it really does constitute an invitation to legislatures to further restrict abortions. It sends a signal that in many respects the court thinks that legislators, not doctors, may be the ones best positioned to make decisions about our most fundamental options.

So, you know, of course, what we're going to be concerned about is figuring out how to best continue to protect women's health and to continue to protect the ability of women to decide, as we've been able to for over three decades, to end pregnancies when we, in consultation with our doctors and whoever else we think is appropriate, decide that's the best course for us.

AMY GOODMAN: And in terms of doctors or women who have abortions being criminally charged, can you elaborate on this?

LOUISE MELLING: Well, this is a federal law. This is a law that reaches, you know, doctors who provide abortions in every state, all across the country. And if a doctor performs any procedure that's viewed as prohibited by this law, the doctor is at risk of prosecution, and, if convicted, this would be a federal crime. I mean, again, this is unprecedented. For the first time ever, you have a federal law making certain abortions a crime, a law that would say that doctors can be prosecuted for federal violations, for performing abortions that the doctor believes -- and the American College of Obstetricians and Gynecologists support it -- would be best for a woman's health.

AMY GOODMAN: And what are the future cases that you see most significant coming up around the country?

LOUISE MELLING: Well, I think what will be most significant is to see what happens in response to this decision. I mean, I think if you're looking at the press, you already see that anti-choice activists feel emboldened by this decision. I think what's incredibly important is that those of us who really care about abortion and protecting access to abortion and protecting women's health take action and are active in the political process, including in the legislative process, to ensure continued constitutional protection, continued legislative protection, for what is important for women's health and women's equality.

AMY GOODMAN: Well, I want to thank you very much for joining us, and we will, of course, continue to cover the significance of this. Louise Melling, our guest, with the American Civil Liberties Union.

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Amy Goodman is the host of the nationally syndicated radio news program, Democracy Now!

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