A Matter Of Life And Health

Karen Pearl

July 25, 2005

Karen Pearl is interim president of Planned Parenthood Federation of America

In the fight over the future of our reproductive freedoms, it's sometimes the quiet battles that take the heaviest toll.

Consider Ayotte v. Planned Parenthood, on the U.S. Supreme Court's docket for the fall.  The issues before the nine justices have broad implications for reproductive rights and the future of Roe v. Wade as we know it.  With this case, the court will consider the constitutionality of abortion restrictions that could endanger women’s health.  In deciding this case, the court will be faced with a crucial question, “How many women must be harmed by an abortion restriction before the court finds it unconstitutional?” Basically, the court will decide whether a woman's health matters. That this needs to be debated at all shows how high the stakes are. 

One thing is certain: Justice Sandra Day O'Connor's replacement will play a pivotal role in this decision.  The nomination of Judge John G. Roberts to take Justice O'Connor's seat raises grave concerns for women's health and safety—he coauthored a brief as a government lawyer calling for Roe to be overturned.  If appointed to the court, Judge Roberts could potentially cast the deciding vote in Ayotte.  

The most important abortion case to come before the court recently, Stenberg v. Carhart , was decided by a razor-thin margin of one vote (five to four) in favor of protections for women’s health.  With the nomination of John G. Roberts, women’s health and safety hang precariously in the balance.

The stakes could not be higher.  It is the Senate’s duty to only confirm justices to the Supreme Court who affirm their support for basic rights—including the right to privacy and the right to make childbearing choices.  Like Supreme Court nominees before him, John Roberts must fully and thoroughly state his position on reproductive health issues prior to a vote on his nomination.  It is the Senate’s job to make sure that happens.

What's At Stake

Under consideration in Ayotte v. Planned Parenthood is a 2003 New Hampshire abortion restriction that targets young women and does not include a health exception. This lack of a health exception is why the law was found unconstitutional in two federal courts that followed Supreme Court precedent in the 2000 Stenberg v. Carhart decision. That decision affirmed that protecting a woman's health must always take priority in laws restricting access to abortion. 

Veteran court watchers were surprised, to say the least, when the court agreed to hear Ayotte . Two issues that have wide-ranging implications for women's health and access to reproductive health care will be examined in the case. The first is how the court looks at abortion restrictions. The second is whether laws that restrict abortion must have a health exception.

If the court decides to change the way it looks at abortion restrictions, protecting a woman's access to abortion services could become much more difficult.  Right now, an abortion restriction can be struck down if it would harm a large fraction of the women affected by it.  In Ayotte, the New Hampshire attorney general argues that the court should change the way it looks at restrictions so a law is only unconstitutional if every woman is harmed by it. 

By re-examining the way it looks at this issue, the court will, in essence, decide how many women must be hurt before a law is ruled unconstitutional.  Put another way, the question before the court is, "Does a woman's health have value?" Should a woman be denied access to emergency care just because most women will never need it? Do women matter?

Undermining Doctors' Authority

The second issue is whether New Hampshire’s judicial bypass system provides the health exception the Constitution requires.  Planned Parenthood says it does not.  By forcing women with significant health risks to go to court and wait for a judge to authorize an abortion, lawmakers are usurping the role of doctors in deciding who should be able to receive emergency care, and under what circumstances. 

Cases like Ayotte underscore how vital the Supreme Court is in protecting women's health.  While the court's decision in Ayotte is not likely to overturn Roe, the court could, depending on how it rules, fundamentally change the legal landscape for abortion rights and significantly jeopardize women's health and safety. 

Although the language in Stenberg was clear—that women’s health must be paramount—the margin was small: five to four.  Justice O'Connor's vote was decisive in upholding these constitutional protections for women's health and safety.  With her retirement, the outlook for these critical safeguards is uncertain.  The future of women's health is in the hands of the justice nominated to replace her.  With nearly two-thirds of Americans supporting Roe, it is necessary to ensure that before Judge Roberts is confirmed to a lifetime position on the Supreme Court, he state his position on reproductive freedom clearly and completely, fully affirm his belief in the principles of Roe , and pledge to uphold the decision as the law of the land.

Without this guarantee, Roe may become an empty promise.