On June 28, 2000 the U.S. Supreme Court struck down a sweeping state ban on abortion. Despite that ruling, Congress passed an almost identical law that was signed by President George W. Bush on November 5, 2003. The Center for Reproductive Rights filed a legal challenge to the ban—the first-ever federal ban on abortion--on behalf of Dr. LeRoy Carhart, the lead plaintiff in the 2000 Supreme Court trial. After the federal law was struck down in all lower courts, in 2006 the Supreme Court announced that it would review the Center's case.
U.S. Supreme Court: Abortion Ban Is Unconstitutional
In Stenberg v. Carhart, 530 U.S. 914 (2000), the Supreme Court overturned a Nebraska statute banning abortion, deceptively called a "partial-birth abortion" ban. The Center for Reproductive Rights represented LeRoy Carhart, M.D., the Nebraska physician who challenged the ban. The Court's decision exposed these bans for what they are: extreme and deceptive attempts to outlaw abortion even early in pregnancy. Moreover, these bans jeopardize women's health: "a State may promote but not endanger a woman’s health when it regulates the methods of abortion." Carhart, 530 U.S. at 931 (citations omitted).
First, the Court found that the ban would outlaw the safest and most commonly used methods of second-trimester abortion, and therefore constituted an undue burden on women’s right to obtain abortions. Nebraska's law banned not only the intact dilation and extraction (D&X) technique, it also prohibited the most commonly used second trimester abortion method, dilation and evacuation (D&E), of which D&X is one variant.
Second, the Court ruled that women have the right to choose the safest method of abortion throughout pregnancy, and that this right was violated because the ban lacked an exception for women’s health. As the Court’s opinion states: "the absence of a health exception will place women at an unnecessary risk of tragic health consequences." 530 U.S. at 938.
New Ban, Same Flaws
In Carhart, the Supreme Court made it clear that, under the Constitution, legislation restricting methods of abortion must be specific and must not ban the most commonly used methods. Furthermore, such legislation must contain an exception for the woman's health. But the new federal law defies the Court’s ruling on both scores.
First, the law does not prohibit one abortion technique at one stage of pregnancy, it prohibits the safest and most commonly used techniques in the second trimester.
Second, the law contains no health exception. Its drafters contended that the banned procedures are never necessary to protect a woman’s health. This, however, was precisely the argument rejected by the Supreme Court in Carhart. The law is thus unconstitutional despite the declaration in Congressional findings that the legislation is exempt from the Supreme Court’s analysis in Carhart.
Exposing the Deceptive Abortion Ban
Anti-choice extremists have propagated two myths about so-called "partial-birth abortion," to mask the wide impact this would have on all abortions.
Deception #1: "Partial-birth abortion" bans target a specific procedure
Despite a deceptive public relations strategy that has tried to advance this myth, the new federal ban is not limited to a specific procedure. In the 2000 U.S. Supreme Court case, Carhart, proponents of the statute attempted to convince the Supreme Court that the ban was limited to D&X. But the Court noted "there is no language in the statute that supports it." 530 U.S. at 918. In fact, the Nebraska legislature rejected an amendment that would have limited the law to only one narrowly defined procedure or to abortions performed late in pregnancy.
Deception #2: These laws ban abortions only late in pregnancy
The new law contains no reference to the stage of pregnancy to which its harsh penalties apply. This law would also ban safe and effective abortions. Forty states already ban third-trimester abortions except when the life or health of the woman is at stake.
Medical Groups Reject Bans As Extreme
So-called "partial-birth abortion" bans criminalize many abortion procedures with severe penalties on doctors that include imprisonment and fines. The American College of Obstetricians and Gynecologists (ACOG), which represents over 90 percent of all physicians specializing in obstetrics and gynecology, rejected the bans as "inappropriate, ill advised, and dangerous." (ACOG Statement of Policy, January 12, 1997)
In Carhart, the Supreme Court majority cited with approval the "highly plausible" record developed in earlier phases of the case, as well as the amicus brief submitted by ACOG and other health experts (see 530 U.S. at 936), which summarized the opinions of all major medical groups supporting a woman’s right to choose the safest method of abortion, including, in some instances, the D&X technique.
Stenberg v. Carhart:
The Center for Reproductive Rights prevailed in the courts, Congress and the media to defeat bans on abortion. The Center for Reproductive Rights won before the ultimate authority on the Constitution, the Supreme Court. The Court’s ruling rejected a ban on abortions that would have prevented women from obtaining the safest and most appropriate medical procedures recommended to them by their own doctors.
By passing the 2003 federal abortion ban, the President and anti-abortion forces in Congress have flouted Supreme Court precedent. Furthermore, the new law ignores years of testimony by medical experts revealing the dangers this ban poses to women’s health. It also ignores the opinions of the American public, which has rejected the deceptive language of this ban through ballot initiatives.
In 2004, three federal judges across the country declared the "Partial Birth Abortion Act of 2003" unconstitutional in separate cases, recognizing the law as a threat to women's health. The following year, three appellate courts upheld those decisions. Then on February 21, 2006, the Supreme Court agreed to review the Center's case, Gonzales v. Carhart.