A Sharp Reversal: Commentary from the Center for Reproductive Rights

The following commentary is by Bonnie Scott Jones, a senior attorney at the Center for Reproductive Rights.

In a stunning sacrifice of women’s health and physician judgment, the majority has held that where differences of opinion exist in the medical community, politicians may decide what doctors should do. This decision gives legislatures sweeping reign in the abortion context because there will always be differences of opinion among experts and practitioners about how best to protect the health of women seeking abortions. Indeed, given the nature of science, the diverse religious and moral views held by Americans, and the ease of creating and publishing (junk) science, those differences are inevitable on any issue intertwining medicine and morality. Accordingly, the decision opens the door for legislatures to dictate medical treatment in virtually any area of medical practice. By holding that legislatures are free to regulate whenever such differences of opinion exist, the Court has left Americans with politicians rather than doctors making medical decisions for them. The health costs of that holding today fall upon the one-third of American women who will obtain abortions in their lifetime.

Today’s decision constitutes not only a profound setback for woman’s health, but a sharp reversal from prior abortion jurisprudence. While the majority never admits to overturning precedent, it clearly does so. The most blatant reversal is of a central holding of Stenberg v. Carhart, the Supreme Court’s most recent abortion decision. The Stenberg Court held that where there is a dispute in the medical community about whether an abortion restriction could endanger women’s health, and where “substantial medical authority” supports the position that it could, then the restriction must contain a health exception. Today’s decision holds the very opposite: that where there is a dispute in the medical community about whether an abortion restriction could endanger woman’s health, no health exception is required. Thus, while Roberts and Alito gave lip service in their confirmation hearings to the importance of observing precedent and following established law, they did just the opposite in this case, granting certiorari — despite the fact that all three appellate courts to consider the Act applied the same controlling precedent and came to the same holding — and overruling a recent ruling disfavored by the new majority.

In addition to directly overturning Stenberg’s mandate to protect women’s health in the face of medical uncertainty, today’s ruling abandons core principles of Roe v. Wade and Planned Parenthood v. Casey. For over thirty years, abortion jurisprudence has required that women’s health be held paramount and not sacrificed to the government’s interest in potential life. Today, the Court has held that Congress, in the name of promoting respect for human life, may require doctors to change their abortion methods in ways that are less safe for women. The majority has also signaled its likely shift away from the holding of Casey that an abortion restriction is facially unconstitutional if it imposes an undue burden on a large fraction of the women to whom the restriction is relevant. Although the majority claims not to be deciding the standard applicable to facial abortion challenges, it makes clear its position that as-applied, rather than facial, challenges are the more appropriate (if not the only) mechanism for attacking abortion restrictions.

Finally, in light of these other shifts away from prior precedent, it does not seem alarmist to note that the central holdings of Roe and Casey – that a woman has a right to make the ultimate decision to terminate a pregnancy prior to viability, and that the state may not impose an undue burden on that right – were only “assumed” by the majority, not stated as the controlling law.