Supreme Injustice

Court ruling erodes women's privacy rights

Commentary

by Barry Henderson

The April decision by the U.S. Supreme Court to uphold the congressionally mandated, Bush administration-backed ban on partial-birth abortions is deeply troubling. It undermines the basis of women's abortion rights as set out in the court's 1973 Roe v. Wade ruling.

While the court, which turned on the votes of President Bush's appointees, let some aspects of abortion rights stand, it denied further access to a rarely used procedure that is sometimes the safest way to end a pregnancy while preserving the health of the woman.

The 5-4 court ruling institutes a ban that allows no exception for the issue of the woman's health and ignores the findings within the American medical community that the procedure, also known as intact dilation and extraction, may be needed to reduce the threat to a woman's health or even life.

The underlying tenet of Roe v. Wade, that a decision to abort a pregnancy is a matter between the individual woman and her physician, was eroded in the process. The court majority, all five of whom are male, determined that women's rights are secondary, and that other, riskier procedures are available, so the partial-birth abortion practice should be ended.

In the previous high court case that rode on the validity of partial-birth abortion, the court voted 5-4 in 2000 to strike down a similar prohibitive law at the state level. The deciding vote in that case, where the majority ruled that such a ban placed an undue burden on a woman's right to make an abortion decision, was cast by Justice Sandra Day O'Connor, who has since retired and been replaced by a man, Justice Samuel Alito.

The lone remaining female justice, Ruth Bader Ginsburg, wrote the minority dissent from the 2007 decision. She called it â“alarmingâ. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists.â”

Justice Ginsburg also wrote that the decision â“recalls ancient notions about women's place in society and, under the Constitution, ideas that have long since been discredited.â”

She's right. A woman's right to privacy in dealing with her pregnancy has been fractured.

So much for federal privacy considerations in medical decisions. The irony is that the federal government has recently gone to great lengths, encumbering the health care establishment and individual patients, to ensure that privacy is a primary issue in the practice of medicine, all with the blessings of the Bush administration. Then in this instance, the administration throws privacy out the window, arguing successfully against women's privacy rights to strike a blow at Roe v. Wade.

The court's majority opinion left open the possibility that states may legislate further restrictions on abortions. In Tennessee, all women, like all men, have a right to privacy as it is construed by the state Supreme Court that is guaranteed to all citizens under this state's Constitution. It will be interesting to see how that privacy right is protected when this federal abortion law is cited to intervene or some further state restriction on abortion choice is attempted by the Legislature.

Justice Ginsburg points out that the Supreme Court majority opinion â“deprives women of the right to make an autonomous choice,â” even at the expense of their safety.

Take away choice, and you take away a privacy right at the national level that may be difficult to restore. It was a Republican-controlled Congress that passed the partial-birth abortion ban in 2003, and it took four years for that ban to wend its way to a Republican-dominated Supreme Court for affirmation.

Now that the congressional majority has shifted to Democrats, let's hope it doesn't take too longâ"and threaten too many women's livesâ"before it is repealed. And let's hope a Democrat or a moderate Republican is elected president, so that the next open seats on the Supreme Court are filled by men or women who will honor women's rights in reproductive choices.

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