Protecting Women from Their Abortion Choices

In its 1992 Planned Parenthood v. Casey decision, the U.S. Supreme Court reaffirmed Roe v. Wade's basic holding.¹ According to Casey, pregnant women have a constitutional right to choose abortion before the fetus is viable, and the state may not create substantial obstacles to a woman's exercise of that right. After viability, the state may restrict abortion as long as it permits the procedure when necessary to protect a woman's life or health. At the same time, Casey recognized the government's legitimate interest in promoting respect for human life from the beginning of pregnancy, an interest that could justify abortion restrictions that have an "incidental effect of making it more difficult or more expensive to procure an abortion."

After their defeat in Casey, groups opposed to abortion rights sought to increase support for their cause by broadening their arguments for abortion restrictions. Instead of presenting the abortion issue as primarily a conflict between the pregnant woman's interest in self-determination and the state's interest in protecting developing human life, they began speaking of abortion as a threat to both women and their potential children. Certain restrictions were justified, they said, by the need to protect women from harmful choices to end their pregnancies.²

Recent federal litigation shows that advocates have had some success with this approach. In Gonzales v. Carhart, the Supreme Court upheld the constitutionality of the Partial-Birth Abortion Ban Act of 2003, a federal law punishing physicians who intentionally perform an abortion procedure known as intact dilation and evacuation.³ The case raises a host of questions about the constitutional status of abortion. What I want to discuss is how the majority and dissenting opinions portrayed women's abortion choices.

Writing for the majority, Justice Kennedy began by describing different abortion techniques. In the most common second-trimester abortion procedure, dilation and evacuation, the physician dilates the woman's cervix and removes portions of the fetus from the uterus. In the procedure prohibited by the Partial-Birth Abortion Ban Act, intact dilation and evacuation, the physician dilates the woman's cervix and then attempts to extract the entire fetus. Because of its size, the physician must usually crush or otherwise destroy the head to remove it. According to the law's supporters, intact D&E entails killing a partially-delivered, living fetus. Many physicians and medical organizations say that the procedure is sometimes the safest one for pregnant women, but Justice Kennedy said there was enough contrary evidence to support a congressional finding that the ban would not jeopardize women's health.

Among the Court's reasons for upholding the ban was the state's concern about the procedure's impact on women. Kennedy wrote, "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." Moreover, to reduce women's anxiety about undergoing intact D&E, "some doctors may prefer not to disclose precise details of the means that will be used." Kennedy found it "self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child."

According to Kennedy and others in the majority, it is constitutional for the state to impose restrictions to protect inadequately informed women from regret about having an intact D&E. Although this problem could be alleviated by a mandatory disclosure requirement, the majority held that Congress could also alleviate the problem by banning intact D&E altogether.

In a dissenting opinion joined by three other justices, Justice Ginsburg took issue with the majority's view of a pregnant woman's choice to have an intact D&E. Besides calling attention to a lack of evidence that women who have abortions experience greater regret than do women who continue unwanted pregnancies, she accused the majority of invoking old...