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As I am writing this essay, the United States Supreme Court is hearing arguments on this and a related case dealing with the constitutionality of Congress's Partial Birth Abortion Ban Act of 2003. Many have blogged the case; here is a handy plain-language summary. The purpose of this and the next essay is to do a legal/cultural reading of the case in an attempt to divine how America approaches the still highly contested/emotional issue of abortion rights.

Roe v. Wade (1973)

The Roe case, decided by a 7-2 margin on January 22, 1973, the same day a former US President (Johnson) died, dealt with the conundrum presented by the co-existence, side by side, of "old," highly restrictive anti-abortion state statutes (from the 1860s-1870s) and newer, more permissive abortion statutes, fashioned after the Model Penal Code (1960s), adopted in about 1/4 of the states by 1973. The former statutes only permitted abortions in rare cases (to save the life of the mother); the latter statutes permitted abortions in a wide range of cases--if in the professional judgment of the physician the pregnancy would cause grave physical or mental health consequences for the mother. Thus, the Court was faced with a patchwork quilt of abortion statutes when it heard the case both in 1971 and 1972. Rather than permitting a sort of state-by-state approach to the issue, the Court decided to federalize abortion law. Second, it decided to invent a framework, suggested by then-current medical scholarship, of how to divide the period of pregnancy. I think there is a potential inconsistency, or at least unclarity, in the decision, since the Court seemingly adopts a pretty rigid trimester treatment of pregnancy, each one of which trimesters clothes the mother or the state with rights while, at the same time, emphasizing that fetal viability (the ancient term was "quickening") is the crucial time for legal consideration.

Nevertheless, the Court held that during the first trimester of pregnancy, the pregnancy could be terminated for any reason if the woman and her physician agreed to terminate it. During the second trimester a pregnancy could still be legally aborted, though the state could regulate physicians and abortion practices in this time. During the third trimester, after viability of a fetus, a state could proscribe abortions altogether. It is this middle period of pregnancy and an abortion procedure known as "D & X" (dilation and extraction or "intact D & E") which the Partial Birth Abortion Ban Act of 2003 was trying to address.

The Background to Carhart

We know, then, from Roe, that abortions are legal throughout the United States, subject to state regulation in the second or even proscription in the third trimester. The Court justified its decision on several grounds, the most important of which were the developing doctrine of privacy and the current state of medical knowledge in 1973. There was no unanimity where the doctrine of privacy found its Constitutional anchoring (the 14th Amendment Equal Protection clause? the 9th Amendment? the "penumbras" of several of the first Eight Amendments? or a sort of balancing test in which the interests of the state and those of the woman were weighed against each other), but the doctrine of privacy further entered the bloodstream of American jurisprudence through this case. Thus, when a Supreme Court nominee is questioned these days about his/her approach to the doctrine of privacy, the inquiry is a sort of proxy one for how the Justice might approach the issue of abortion rights.

One other important result of Roe, however, ought to be mentioned. Any abortion restriction in the second trimester of pregnancy or any proscription of it in the third trimester, must take cognizance of the life and health of the mother. That is, if a 2nd trimester regulation would impinge negatively upon the health of the mother, it would be disallowed under Roe. I mention this point because the Partial Birth Abortion Ban Act of 2003 eliminated a medical procedure ("intact D & E" or "D & X") which many obstetricians have argued is actually less medically intrusive to a woman than the traditional D & E procedure. Thus, the "life and health" of the mother are essential criteria for the passage of abortion restrictions in both the second and third trimesters of pregnancy. This "life and health" connection was affirmed in later abortion-related cases, the most important of which was the Casey case from PA in 1992.

Issues in Carhart

As said above, at issue in Carhart is the constitutionality of Congress's 2003 law prohibiting what it called "partial birth" abortions. From all that I have read, these abortions are most gruesome medical procedures to those of us who aren't doctors. The fetus is extracted from the womb until its developing head is in full view, the head is then punctured and the brains are vacuumed out. Then, the rest of the fetus is extracted without any device entering inside the woman's womb. Many physicians have testified that this procedure, horrendous as it sounds, actually is safer for the mother, since she will not have to face intrusive surgical procedures that may perforate her uterus or otherwise do damage to her. When Nebraska tried to outlaw this procedure in the late 1990s, the US Supreme Court, in a contentious 5-4 decision in 2000 (Stenberg v. Carhart) declared the Nebraska statute unconstitutional. The Nebraska law would have outlawed this intact D & E procedure unless the mother's life was at risk. The Court's decision was based on the fact that the NE law lacked the requisite exception "for the preservation of the..health of the mother" (quoting Casey). In other words, the State may promote but not endanger a woman's health when it regulates the methods of abortion in the 2nd trimester of pregnancy.

In light of the Court's decision, Congress passed its 2003 statute which looks, to most observers, very similar to the Nebraska law which the Court held unconstitutional in 2000. The 2003 Act includes an exception to the ban on the intact D & E procedure if the life of the mother is threatened. However, as Prof. Martha Davis has written: "despite the Supreme Court's earlier ruling in Stenberg, the Act does not include a health exception." Why? Because Congress made a factual finding before passing the 2003 Act that the partial-birth abortion method (intact D & E) is never medically necessary to preserve a mother's health--i.e., that it cannot be undertaken/recommended to improve/preserve health. Hence, the Congress decided that it wasn't necessary to put in the "health exception" into the statute. By doing so, however, it was flaunting the Supreme Court directly to its face--by saying that what was essential to the Roe/Casey holdings, and to abortion law in general, was unimportant to them in passing the Act in 2003.

The next essay considers what is at stake, then, as the Court decides this case.

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