Today the Supreme Court upheld the Federal Abortion Ban, which includes no exception to protect a woman’s health. This decision represents a monumental departure from prior cases, and with it the Court today effectively eliminated one of Roe v. Wade’s core protections: that a woman’s health must always be paramount.
Just seven years ago, the Court struck down a similar ban, with Justice O’Connor casting the decisive vote to protect a woman’s health and the right to choose. Today, President Bush’s two new appointees, Roberts and Alito, provided the votes that eviscerated Roe’s promise of protecting women’s health.
The Federal Abortion Ban outlaws certain second-trimester abortions, and does not include any exception for when a woman’s health is threatened. In upholding the ban, the Supreme Court ignored three decades of precedent requiring protections for women’s health, and retreated from Roe’s requirement that politicians not endanger women’s health when regulating abortion.
The Federal Abortion Ban, which the Bush Department of Justice is now empowered to enforce, trumps state laws and constitutions that offer greater protection for a woman’s right to choose than does the federal constitution. Solidly pro-choice states are now subject to an abortion restriction enacted by an anti-choice Congress.
Justice Kennedy wrote the majority opinion upholding the ban, which was joined by Chief Justice Roberts, along with Justices Alito, Scalia, and Thomas. Scalia and Thomas wrote separately to re-state their longstanding position that Roe should be overturned in its entirety. Justice Ginsburg authored the dissenting opinion which was joined by Justices Breyer, Souter, and Stevens.
Justice Ginsburg appropriately criticized the majority’s decision: “Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. 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 (ACOG). It blurs the line, firmly drawn in Casey between previability and postviability abortions and, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.”
The ban imposes a criminal penalty of up to two years in prison for physicians who are convicted of violating the law. Doctors can now face federal prison time for providing what they conclude is the safest possible care for their patients.
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