Court Fires Opening Salvo at Abortion Rights

    Social conservatives across the nation toasted President George W. Bush at their dinner tables on April 18, when the Supreme Court voted 5-4 to uphold a 2003 federal ban on a rare abortion procedure – the first such ban to win approval from the high court.

    Richard Pham/Guardian

    Following Justice Sandra Day O’Connor’s 2005 retirement, Bush’s appointment of Samuel A. Alito Jr. flipped the court, which had ruled 5-4 against a nearly identical state law in 2000. Both laws neglected the precedent that mandated requirement for an exception to preserve the woman’s health. (The ban said that “”a partial-birth abortion is never necessary to preserve the health of a woman,”” despite expert testimony that pointed out that the procedure was safest in many circumstances.) A crucial 1992 decision protecting the fundamental right to abortion also relied on the court’s former majoritarian support of abortion rights. Now, that right is in serious jeopardy.

    The ruling in Gonzales v. Carhart flies in the face of precedent and continues to supply social conservatives with valuable ammunition in their battle against abortion and, for the movement’s far right, contraception. The court’s placement of the state’s interest in promoting fetal life above the woman’s right to choose a specific procedure lays the foundation for increasingly restrictive laws that will substantively achieve social conservatives’ hard-fought goal of materially blocking a woman’s ability to seek an abortion – a potentially deterministic political victory.

    Already, abortion services can be extremely difficult to obtain in the country’s most conservative areas; Carhart’s implications could make access impossible for some women. Two justices, Antonin Scalia and Clarence Thomas, said in an addendum to the ruling that they would overturn landmark Roe v. Wade if given the opportunity. If Roe were overturned abortion would be completely outlawed in many conservative-dominated states – a possibility that has social conservatives salivating.

    The politicization of the Supreme Court follows a trend in Bush’s presidency: Loyalty comes first. His first nomination to a court seat was long-time associate and former White House Counsel Harriet Miers, who had no previous judicial experience. The choice demonstrated Bush’s desire to form the court in his ideology’s image. Scandals of incompetence arising from his administration – most recently, Attorney General Alberto Gonzales’ inability to recall his role in the potentially politically motivated firings of eight U.S. attorneys – only further illustrate Bush’s ethos.

    Admittedly, the ruling’s material consequences will be limited: Of the approximately 1.3 million abortions performed in the United States each year, fewer than 5,000 would be affected by the ruling. However, Carheart’s political implications – including the consequences for 2008’s presidential contest – are certainly significant.

    Two of the court’s firmest supporters of abortion rights, justices Ruth Bader Ginsburg and John Paul Stevens, are aging quickly – Stevens is 87 and Ginsburg is 74. The 2008 presidential victor will most likely have the opportunity to appoint at least one new Supreme Court justice, an opportunity that could allow pro-choice advocates to fight back – or solidify conservative control of the U.S. government’s most authoritative branch.

    Legally, however, Ginsburg’s dissent may help abortion rights supporters gain new constitutional ground. Rather than relying on the “”penumbras”” of several amendments forming the right to privacy that constituted the basis of the court’s ruling in Roe, Ginsburg presents a defense of abortion based on the right to equal opportunity and freedom from sex-based discrimination, reasoning that has far more constitutional grounding. In her dissent, Ginsburg said that abortion rights “”center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.””

    Ginsburg’s argument seeks to undercut the paternalistic undertones of the conservative message, which is that women must be protected from a decision “”fraught with emotional consequence that they may “”come to regret”” (from Kennedy’s majority opinion). Such an attitude, according to Ginsburg, “”reflects ancient notions”” about women’s role in society. This attitude is also highlighted in other abortion-related laws making their way through the judicial system, including a South Dakota “”informed consent”” law requiring women to sign consent forms stating that their abortion will “”terminate the life of a whole, separate, unique, living human being”” and warning them that they will likely suffer psychological trauma and will be at increased risk for suicide.

    This paternalistic bent defines social conservatives’ ideology: Women cannot be trusted to make reproductive decisions that are right for them. Luckily, women have men like Scalia, Thomas, Kennedy, Alito and Chief Justice John Roberts ready to protect them from such dangers.

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