Gretchen Borchelt, Senior Counsel & Director of State Reproductive Health Policy

Part 6: The Future Does Not Look Bright
by Gretchen Borchelt

Now that the Supreme Court term has ended, we’ve offered our take on what the term overall meant for women.  But what about Gonzales v. Carhart?  What are the implications of all the aspects of the decision I’ve blogged about?  I’m warning you – it doesn’t look good:

Part 4: The Court Tells Vulnerable Women to Go to Court for the Safest Healthcare
by Gretchen Borchelt

Like last week’s installment, this week’s focuses on a technical legal point that will have a huge impact on real women’s lives.  The Supreme Court in Gonzales v. Carhart said that if an individual woman wants to access the safest healthcare for her, she will have to go to court in order to get it. 

The Court did this by changing its mind on whether women and their doctors can bring “facial challenges” to abortion restrictions.  Facial challenges are those that say an entire law is unconstitutional on its face, and prevent the law from going into effect before anyone is injured by it.  In Gonzales v. Carhart, the Court said that the lawsuits brought against the federal ban because of a lack of health exception should not have proceeded as facial challenges.  Instead, the Court said that challenges to the law should have been “as-applied” challenges.  As-applied challenges require individuals to go to court to stop the law from being applied to them because of their particular circumstances. 

In this case, that means that vulnerable women – women with health conditions ranging from placental cancer to blood disorders and women with fetuses who have grave fetal abnormalities – have to find a lawyer and go to court if they want access to the procedure that may be the safest for them.  This puts individual women in a terrible position.  As Justice Ginsburg said in her dissent, a “woman ‘suffer[ing] from medical complications’ needs access to the medical procedure at once and cannot wait for the judicial process to unfold.” 

This is a huge change from prior practice.