Regulating Abortion in the United States after Gonzales v Carhart
| Author | Graham Gee |
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00673.x |
| Date | 01 November 2007 |
| Published date | 01 November 2007 |
CASES
Regulating Abortion in the United States after
Gonzales vCarhart
Graham Gee
n
In Gonzales vCarhart
1
the United States Supreme Court upheld the constitution-
ality of the Partial-Birth Abortion Ban Act of 2003ça federal statute criminalis-
ing a medical procedure known colloquially as partial-birth abortion,but referred
to by physicians as intact dilation and extraction (‘D&X’).
2
The decision’s signi¢-
cance is threefold. First, Gonzales shatters a decade-long stalemate on abortion
regulation. Not only is the decis iont he ¢rst to uphold aba n on a speci¢c abortion
procedure, but it also represents the ¢rst time that the Court has approved an
abortion restriction that fails to provide an exception for the health of the preg-
nant woman. In this, the decision is a signi¢cant retreat from the protection of a
woman’s reproductive choice a¡orded by Roe vWa d e ,
3
Planne d Parenthoo d vCasey
4
and Stenberg vCarhart.
5
Second, the emphasis Gonzales places on the claim that
women su¡er from mental health problems after abortion, and why it is thus
necessary to protect women, represents an important victory for those who have
sought to reposition the a nti-abortion movement as protectors, rather than critics,
of women. At the same time, byappearing to suggest that a woman is best pro-
tected by reducing her reproductive choice, the decision points to a troubling
‘neo-paternalism’ in the regulation of abortion. Finally, the 5^4 decision in Gon-
zales suggests an emerging, if fragile conservative majority on the Court and, in
this, validates the anti-abortion movement’s strategyof ‘pushing for step-by-step
restrictions on abortion while working to change the composition of the
Supreme Court’.
6
This note interweaves these three themes to explainwhy Gon-
zales may be portentous not just with respect to the future direction of abortion
regulation, but also the future direction of the Court itself.
CONSTITUTIONAL BACKGROUND
In 1973, the Supreme Court in Roe vWa d e held that the Due Process Clause of the
Fourteenth Amendment, which protects the right to privacy, included a woman’s
n
Brasenose College, Oxford. Thanks to Je¡ King, Gre
Łgoire Webber and the anonymous referee for
helpful comments on an earlier draft.
1 No 05^380 (Decided 18 April 2007).
218USCy1531(2000 ed, Supp IV).
3 410 US113 (1973).
4 505 US 833(1992).
5 530 US 743(200 0).
6 ‘Court Ruling Catapults AbortionBack Into ’08 Race’NewYorkTime s 19 Apr il 2 00 7.
r2007 The Authors.Journal Compilation r2007 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(6) 9 79^1007
To continue reading
Request your trial