Gonzales v. Carhart: Just How Bad Is It?

Part 2: The Supreme Court, Now Endorsing Paternalism
by Gretchen Borchelt

This is Part 2 of a series on the Supreme Court abortion decision Gonzales v. Carhart.  For Part 1, click here.

Another troubling aspect of the Court's decision in Gonzales v. Carhart is its recognition of new government interests that can constitutionally justify restrictions on a woman's access to abortion. 

First, the Court recognized Congress's interest in banning what it termed a "brutal and inhumane" procedure.  While federal and state governments have always been allowed to justify restrictions on abortion in order to protect potential fetal life, never before has the "gruesomeness" of the procedure been a factor.  As Justice Ginsburg points out in her dissent, "the Act scarcely furthers that interest [in promoting potential life]: The law saves not a single fetus from destruction, for it targets only a method of performing abortion."  And with a new interest of banning procedures the state or Congress considers "gruesome" and "brutal," what is to stop anti-choice legislators from banning all abortion methods, one by one?  Won't they describe each abortion method as "brutal and inhumane"?  This newly recognized government interest gives license to anti-choice legislators go after all abortion procedures.

Second, Congress asserted an interest in protecting the reputation of the medical profession.

Congress believes the banned procedure "confuses the medical, legal, and ethical duties of physicians."  But physicians don't seem to be confused at all by the procedure -- it was used by leading providers and taught at prominent medical schools.  And the nation's leading group of professionals providing health care for women opposed the ban precisely because it asked them to violate their duties to patients -- it forced them to choose between using the safest procedure for their patients and obeying the law.  By accepting this new interest, the Court has said it's ok for politicians to disregard the views of the medical profession and intrude in the day-to-day practice of medicine.  In other words, Congress can protect the medical community from itself.  This kind of paternalism comes up again in the Court's decision -- I'll blog tomorrow on the paternalism directed at women, which is a new government interest that may have far reaching consequences for women's lives.