Why The Right-To-Life Movement Faces A Difficult Future

This week's five to four Supreme Court ruling striking down a Nebraska law aimed at outlawing what opponents call "partial birth" abortions was an even bigger legal defeat for anti-abortion forces than the press-and activists-have so far realized.

The Court's majority opinion identified two fatal defects in the Nebraska law. First, the Court found that Nebraska's definition of the procedure was so broadly worded that it violated the "undue burden" test that the Court had laid down for anti-abortion measures in the landmark 1992 case, Planned Parenthood v. Casey, another five to four ruling that reaffirmed Roe v. Wade (1973). Most, although not all, of the 30 other states laws outlawing "partial-birth" abortions have similar or identical flaws and are now also unconstitutional.

Anti-abortion activists and lawyers have realized for several years that these statutes were at risk, and were at work at crafting more precisely worded prohibitions even before the Supreme Court ruled. Ohio, for example, adopted a new statute outlawing what it called "partial-birth feticide" this past March, and the new law was scheduled to take effect late this summer.

But the Supreme Court's majority opinion in the Nebraska case, Stenberg v. Carhart, also identified a second and more serious shortcoming in Nebraska's ban. The statute included an exception allowing a doctor to perform such a procedure if it was necessary to save a woman's life, but it failed to extend such an exception to instances in which a doctor believed the procedure was necessary to protect a woman's health.

Both in Casey in 1992, and in Doe v. Bolton, a companion case to Roe v. Wade in 1973, the Supreme Court had explicitly declared that all anti-abortion regulations, even those targeted against post-viability abortions, had to include exceptions for a woman's life and health in order to pass constitutional muster. Indeed, the Court had mandated an extremely broad and inclusive definition of a woman's health-her "psychological as well as physical well-being"-in an important but now little-remembered 1971 abortion case, United States v. Vuitch, two years before it legalized pre-viability abortions nationwide in Roe v. Wade.

This long-standing and utterly-inclusive Supreme Court definition of "health" is the impassable roadblock that anti-abortion legislators are now staring straight in the face. Abortion opponents argue, quite correctly, that if every anti-abortion law, including ones that are narrowly and clearly worded so as to prohibit only the "intact" abortion method of "dilation and extraction" (D&X) that opponents term "partial-birth," has to include an exception for instances where the procedure might help preserve any aspect of a woman's health, such as her future fertility, a "partial birth" ban would actually be no ban at all. Any doctor, either by invoking the physical safety of her reproductive organs, and/or by invoking her mental and emotional health, would be able to include every possible "partial-birth" abortion within the statutory protection of a "health" exception.