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

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.

Part 2: The Supreme Court, Now Endorsing Paternalism (cont’d)
by Gretchen Borchelt

In addition to the two new interests I blogged about yesterday, there is another one that deserves particular attention and discussion.  It contains ideas about women that are so retrogressive and patronizing that they are almost unbelievable for 2007. Yet they are now part of Supreme Court doctrine.

The majority of the Court in Gonzales v. Carhart recognized a new principle of protecting “the bond of love the mother has for her child.”  The Court said protecting that “bond” could justify prohibiting a medically-approved abortion procedure.  As we explained in a past blog, the Court said banning what could be the safest procedure for a particular woman was for the woman’s own good.  In her dissent, Justice Ginsburg recognized this new interest for what it is—paternalism.  The idea that  the Court and government know what is best for women and their families takes us back to cases decided by the Court over a century ago.  For example: