The Supreme Court’s jurisprudence
on abortion rights is clear: the United States Constitution protects
each and every woman against any law that would force her to carry to
term any pregnancy, including a post-viability pregnancy, which jeopardizes
her life or her health. Since Roe v. Wade, the Court has
repeatedly held that no state interest in fetal life justifies restrictions
on abortion that would subjugate a woman’s interest in preserving
her own health.
The constitutional requirements
for a health exception were first set out in Doe v. Bolton, the
companion case to Roe v. Wade. The Supreme Court explained,
"medical judgment may be exercised in light of all factors — physical,
emotional, psychological, familial, and the woman’s age — relevant
to the well-being of the patient. All these factors may relate
to health." Since Doe was decided, courts have consistently
interpreted health exceptions to post-viability abortion bans as including
both psychological and physical health. For example, in Planned
Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court
noted, "it cannot be questioned that psychological wellbeing is a
facet of health." That decision, which reaffirmed the essential
holding of Roe, made fetal viability the tipping point in a State’s
ability to restrict women’s ability to obtain abortion but explicitly
reaffirmed the paramount importance of a woman’s health and life.
Before viability, the Court held, a pregnant woman has the constitutional
right to have an abortion "and to obtain it without undue interference
from the State." And while the Supreme Court allowed States
to restrict or even prohibit post-viability abortions, it held that
women must be able to obtain such abortions to protect their
life or health.
The Court’s decision in Gonzales v. Carhart does not alter the
constitutional standard about the scope of a health exception in post-viability
restrictions on abortion. By holding that a health exception is not necessary
where a method of post-viability
is banned, that ruling radically departed from 30 years of precedent requiring a
health exception to any restriction on post-viability abortion. It did
not, however, address the Constitution’s requirement that any law banning all
post-viability abortions must include health and life exceptions as set out in Doe.
Abortion opponents have long
and consistently tried to erode or eradicate health exceptions, often
arguing that health is defined so broadly that it allows a woman to
obtain an abortion under any circumstances. This criticism is
frequently presented in a misleading manner that suggests that a woman
is not entitled to a pre-viability abortion unless her life or health
is at risk. In other contexts, anti-abortion critics claim that,
as a result of the Supreme Court’s comprehensive definition, women
are routinely obtaining post-viability abortions for frivolous reasons,
in spite of the fact that number of post-viability procedures performed
in this country is miniscule.
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One form of attack on health
exceptions comes in the guise of a statutory definition of the circumstances
constituting a threat to a woman’s health as a "serious risk of
substantial and irreversible impairment of a major bodily function."
Courts in some states where this definition was passed into law, such
as Kansas, have struck down this definition as unconstitutionally invalid
for failing to encompass the broad concept of health set out in Doe.
Additionally, abortion opponents
seek to exclude mental health, arguing that this component of the health
exception is exploited by women and physicians to justify "unnecessary"
abortions. Those who advance this argument demonstrate a serious
lack of understanding of, and compassion for, the complex and difficult
personal decisions women must make in those rare situations when a post-viability
abortion is an option. For example, the mental health exception
permits a woman to terminate a pregnancy when severe fetal abnormality
is diagnosed. Inclusion of mental health among the permissible
grounds for post-viability abortion is critical to prevent grave threats
to women’s health, and to facilitate an individual woman’s ability
to make the choices that are right for her.
Attempting to restrict the
constitutionally required health exception for post-viability abortions
by imposing requirements that the woman suffer from a serious or significant
medical condition and/or excluding mental health considerations, would
compromise women’s health by limiting the ability of physicians to
consider all aspects of health in exercising medical judgment about
the most appropriate form of treatment. Such limitations would
also undermine the core values of dignity, self-determination, and equality
that underlie all reproductive rights.
Editor’s Note: The author prefers that her photo not accompany the post.