127 S. Ct. 1610 (2007), argued 8 Nov. 2006, decided 18 Apr. 2007 by vote of 5 to 4; Kennedy for the Court; Thomas, joined by Scalia, concurring; Ginsburg, joined by Stevens, Souter, and Breyer, in dissent. In Gonzales v. Carhart, a skirmish in the legal war over the constitutional right to abortion—as announced by the Supreme Court in Roe v. Wade (1973) and reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)—a sharply divided Court upheld the constitutionality of the Partial-Birth Abortion Ban Act of 2003.
As part of their campaign to overturn Roe, anti-abortion activists fashioned a strategy targeting late-term abortions, with the aim of incrementally undermining the distinction implicitly drawn by abortion rights proponents between abortion and infanticide. This campaign resulted in the passage of laws prohibiting abortions using the process known as intact dilation and extraction (or “partial-birth” abortions) in approximately thirty states. In Stenberg v. Carhart (2000), however, the Court invalidated Nebraska's partial-birth abortion law on the grounds that it did not provide the constitutionally required exception for cases affecting a woman's health. The U.S. Congress then passed a national ban on this type of abortion three times. The first two were vetoed by President William Clinton, but the third ban—the statute at issue in Gonzales v. Carhart—was signed into law by President George W. Bush.
The 2003 act criminalized the intentional provision of second-trimester abortions via intact dilation and extraction, in which the doctor extracts the fetus intact (or largely intact). Writing for the majority, Justice Anthony M. Kennedy argued that the act was consistent with Casey's central premise that the government has a legitimate interest in preserving fetal life, and that the state has the power to restrict abortion after viability if the law contains exceptions for pregnancies that endanger the woman's life and health. The Court relied on the fact that alternative methods of second-trimester abortions are available, that the act was specific about the class of abortions prohibited, that it provided for exceptions for abortions that threatened a woman's life, and that it was premised on factual findings by Congress that a “moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion … is a gruesome and inhumane procedure that is never medically necessary and should be prohibited” (p. 1624).
Writing for the dissenters, Justice Ruth Bader Ginsburg argued that the act did not accord appropriate solicitude for a woman's health, that it was premised on congressional findings of fact regarding the benefits and uses of the procedure that were either false or the subject of disagreement among medical experts. She asserted, moreover, that since it regulated only a method of abortion, the act's provisions were not rationally related to its stated purpose of protecting fetal life. Ginsburg forcefully argued her longstanding conviction that a women's “right to make an autonomous choice” regarding reproduction is indispensable to her status as a full American citizen (p. 1649).
Ken I. Kersch