The Supreme Court's decision upholding the Partial Birth Abortion Ban Act is a dramatic change in the law concerning abortion rights. Although Justice Anthony Kennedy's majority opinion pretends that the Court was following precedent, it was doing nothing of the sort. The Court adopted a radically different approach for scrutinizing laws regulating abortion and clearly signaled that there are five justices ready and willing to uphold far more government regulation of abortions.
Ever since Roe v. Wade was decided in 1973, the Supreme Court has declared unconstitutional laws that significantly burden a woman's right to obtain an abortion. For the last 15 years, the Court has held that a law regulating abortion will be struck down if it imposes an undue burden on some women in their ability to exercise their constitutional right to abortion.
For example, in 1992, in Planned Parenthood v. Casey, the Court invalidated a provision in a Pennsylvania law that required married women to notify their husbands before obtaining an abortion. The justices noted that some women are in abusive relationships and a requirement for spousal notification would be an undue burden on them.
Similarly, in 2000, in Stenberg v. Carhart, the Supreme Court struck down a Nebraska law regulating so-called partial birth abortion. The law prohibited removal of a living fetus or a substantial part of a living fetus with the intent of ending the fetus' life. The Court invalidated the statute as an undue burden on the right to abortion because it had no exception allowing the procedure where warranted by the woman's health and because the law was written in a way to prohibit many types of abortion procedures.
In its decision on Wednesday, the Court upheld a federal law prohibiting partial birth abortion which was very similar to that struck down in Stenberg v. Carhart. Like the Nebraska statute, the federal law had no health exception and also was broadly written. There is no way to reconcile Wednesday's ruling with the decision from seven years ago.
Most troubling is the Court's shift in approach. No longer will a law be struck down because it imposes an undue burden on some women in their ability to gain an abortion. Instead, the Court said that a woman wanting to challenge the law must argue that it is unconstitutional as applied to her.
From a practical perspective, this is absurd. Imagine a woman seeking an abortion in her 22nd or 23rd week of pregnancy, before the fetus is viable. Her doctor believes that a partial birth abortion procedure would be by far safer for her. Medical evidence is strong that this procedure is the safest one at this stage of pregnancy, particularly in women with some bleeding disorders and infectious diseases. To use this procedure, the woman and her doctor would have to file a lawsuit arguing that the law is unconstitutional as applied. The urgency and timing would make a judicial determination impossible. By the time a court could rule, the time for the abortion would have passed.
Under the Court's approach in Wednesday's decision, no longer can laws requiring spousal notification or parental notification be struck down as they were in prior cases. Instead, the courts only could hear a claim that the law was unconstitutional as applied to a particular woman. The result is that the government will have far more latitude to regulate abortion and limit the ability of women to exercise their constitutional right to reproductive choice.
Neither precedent nor principle accounts for the Court's significant shift in the law. Rather, the ruling is entirely a result of the shift in the composition of the Court. In Stenberg v. Carhart in 2000, the five justices in the majority were John Paul Stevens, Sandra Day O'Connor, David Souter, Ruth Bader Ginsburg and Stephen Breyer. O'Connor is gone and has been replaced by Samuel Alito. He and Chief Justice Roberts were both in the majority to effectively overrule Stenberg v. Carhart.
There was much discussion at the confirmation hearings of Roberts and Alito about precedent and "super" precedent. We know now that was just a lot of talk to secure confirmations. As their opponents predicted, the new justices are solid votes to limit abortion rights and will have no hesitation about overruling precedent to do so.
The real losers from Wednesday's decision are women who will be subjected to less safe medical procedures. The central holding of Roe v. Wade is that the choice of a medical procedure should be for a woman and her doctor. The Court abandoned that on Wednesday and women across the country will suffer from it.