Ginsburg Dissent: Gonzales v. Carhart, 550 U.S. 129 (2007)
The Supreme Court’s position on abortion has evolved and led to different outcomes over the years. In 2007, the Court heard Gonzales v. Carhart, a clash of morality, medicine, privacy, and women’s rights in abortions. In this summary of the case, Franklin Fegurgur, a 2L, highlights Justice Ginsburg’s dissent in which she voiced her concern over the precedents already established in Roe and Casey in which the Court said that “liberty finds no refuge in the jurisprudence of doubt.” Listen to Justice Ginsburg announce her dissent at https://apps.oyez.org/player/#/roberts2/opinion_announcement_audio/22038.
In Gonzales, the Court considers the validity of the Partial-Birth Abortion Ban Act of 2003. Plaintiffs included Dr. Leroy Carhart as well as other physicians who performed late-term abortions and wanted the Court to stop the Act from going into effect. In 2003, Congress passed the Partial-Birth Abortion Ban Act in response to the Stenberg v. Carhart decision where the Court held that the Nebraska’s partial birth abortion statute violated the Constitution in the aftermath of Planned Parenthood v. Casey and Roe v. Wade. As in earlier decisions, the Court discussed the abortion procedures as the Act sought to regulate a manner of terminating fetal life.
One method the Act sought to prohibit was an intact dilation and extraction (D&E), a common late-term abortion procedure. Congress viewed the procedure as gruesome and inhumane. A main provision of the Act was to prohibit “knowingly performing a partial-birth abortion … that is [not] necessary to save the life of a mother.” The Act would effectually ban most late-term abortions which would place an undue burden on the right to an abortion established in Parenthood v. Casey.
The District Court agreed with the Plaintiffs that the Act was unconstitutional as it lacked an exception allowing the procedure where it is necessary to protect the health of the mother. Furthermore, the Act was “deficient because it covered not merely intact D&E but also certain other D&Es.” The Court of the Appeals for the Eighth Circuit affirmed the District Court’s ruling noting that the Constitution requires the legislatures to include a health exception for the mothers.
Whether the Partial Abortion Ban Act violates the right of personal liberty protected by the Fifth Amendment because the Act lacks an exception for the health of the mother.
Reversed. In a 5-4 decision, the Court upheld the Act by holding that the partial-birth abortion was not unconstitutionally vague nor did it impose an undue burden on the right to an abortion. Writing for the majority, Justice Kennedy stated that the “undue burden” test established in Casey is applicable to the instant case. The phrase referred to measures meant to discourage abortions, and to what degree these measures would be considered overly restrictive. Plaintiffs argued that an intact D&E is the safest method of abortion. Banning this safest method of abortion would not only place an undue burden upon the mother, but possibly risk her life. However, Justice Kennedy noted that the Act “allows a commonly used and generally accepted method, so it does not construct a substantial obstacle to the abortion right.” Furthermore, the majority noted that because the Act applies to only a specific method of abortion (intact D&E) the ban was “not unconstitutionally vague, overbroad, or an undue burden on the decision to obtain an abortion.”
Justice Ginsburg sharply disagreed with the majority noting that “the Court’s hostility to the right Roe and Casey secured is not concealed.” She believed it was irrational for the State to further any legitimate interest in an equally gruesome procedure, which may be similarly characterized as brutal. In her view, “The law saves not a single fetus from destruction, for it targets only a method of performing abortion.” Furthermore, she believed that the Act would “chip away” a right that was declared by the Supreme Court as central to women’s lives. Although Gonzales did not discard previous cases such as Roe or Casey, it was inconsistent with the very principles of stare decisis. Instead of following clear prior holdings, the Court would take deference to this “legislative override of our Constitution-based rulings.”
Justice Ginsburg, true to her roots in litigation for gender equality said of the majority opinion when announcing her dissent, “Notably, the solution the Court approves is not to require doctors to inform women adequately of the different procedures they might choose and the risks each entails. Instead the Court shields the woman by denying her any choice in the matter and this way of protecting women recalls ancient notions about women’s place in society and under the constitution ideas that have long since been discredited.”