Gonzales v. Carhart – Just How Bad Is It?

Part 1: The Supreme Court Endangers Women’s Health
by Gretchen Borchelt

When Gonzales v. Carhart came out, we decried the decision as a dark day for women’s reproductive rights.  Now that almost a month has passed, we’re still upset about the decision, but calm enough to provide a more in-depth analysis of just how bad it is for women.  We’re going to offer our analysis of the case in installments on this blog, but if you want it all at once, check out our new factsheet.

Gonzales v. Carhart has the unfortunate distinction of being the first time ever that the Supreme Court has upheld an abortion restriction lacking a safeguard for women’s health.  Since 1973, the Supreme Court has said that the government may not put a woman’s health at risk when limiting her access to abortion.  In fact, the Court restated this important principle just seven years ago in a case very similar to this one.

But in Gonzales v. Carhart, the majority of the Court—including President Bush’s two new Justices—said a health exception wasn’t necessary.  In other words, the Court said that Congress can ban a medically-approved abortion procedure in every state in the nation even when it is the safest procedure for a particular woman. 

The logic used by the Court to reach its decision is confounding.  The Court said that there is not absolute consensus in the medical community about whether the procedure is ever medically necessary.  Not absolute consensus?  Let’s quickly review the evidence:

The American College of Obstetricians and Gynecologists says there are significant safety advantages to the procedure.  A host of respected physicians said the same thing.  Plus all of the lower courts agreed that the banned procedure can provide safety benefits for women.  Doesn’t that seem like a consensus?  Well, the Court said there wasn’t one, disregarding the judgments of those experts.  Instead, the Court said that where there is no consensus, politicians can step in and decide medical practice. And in this case, the federal government decided there would be no use at all of the procedure when a woman’s health was at risk.  So five Justices decided that Congress knows better than a woman and her doctor what’s best for her health and her family.

You’re right if you’re outraged.  The Court completely ignored over 30 years of case law and turned its back on women’s health.  And this kind of reasoning gives a green light to the government to interfere with all kinds of medical practice, which has caused alarm even among doctors who don’t provide abortions.

It’s very disturbing.  And as I’ll continue to explain in our blogs about the case, this is just one aspect of the new Court’s take on a woman’s right to reproductive choices that has me worried for the future.