This guest post comes to us from frequent ZD commenter and blogging veteran ECS.
Much of the publicity surrounding the U.S. Supreme Court’s recent abortion decision has died down. The Court’s reasoning in Gonzales v. Carhart, however, deserves a closer look. Whether you believe a woman has a right to terminate her pregnancy is not the focus of this post. This post’s focus is on the problematic reasoning in the Supreme Court’s decision in Gonzales, that, among other things, questions the capacity of a woman to give informed consent to undergo a horrifying, yet perhaps necessary, abortion procedure.
Therefore, please do not write polemics in the comments about why abortion is an evil practice or why unfettered reproductive rights are indelibly written into the U.S. Constitution. Comments discussing the Court’s reasoning are welcome, especially well-informed comments. Check out the links and citations for more information about this issue.
1. No Health Exception: While the U.S. Supreme Court has ruled that restrictions on abortion must include an exception for a woman’s health, this law does not include one. Doctors agree that this abortion procedure is performed extremely rarely and is sometimes the most appropriate procedure to protect a woman’s health. (See p. 25 and p.35 of Gonzales). The LDS Church officially recognizes that abortion may be necessary to preserve the health of the mother or â€œwhen the fetus is known by competent medical authority to have severe defects that will not allow the baby to survive beyond birth.â€
2. No Guidelines to Save A Woman’s Life: Although the law allows doctors to perform the outlawed abortion procedure to save a woman’s life, the Court does not give clear guidelines for when a doctor may legally qualify for the exception to use the procedure to save the life of the mother. If, after the doctor performs the procedure, a court deems the procedure was unnecessary to save the life of the mother, the doctor may be prosecuted under the law. (See p. 13 of Gonzales). Thus, the Court accepts legislative reasoning that the procedure is never “medically necessary”, even though the statute itself recognizes that the procedure may be necessary to save the life of the mother. (See p. 21 and 28 of Gonzales). Consequently, women who need the procedure will likely be unable to find doctors willing to risk their medical licenses to perform it.
3. Women Are Incapable of Giving Informed Consent: The Court states that women are incapable of giving informed consent to choose an abortion, even though late-term abortions are rarely performed, and performed only after an agonizing decision that terminating the pregnancy is necessary. (See p. 24 and p. 38 of Gonzales). In the majority opinion, the Court asserts that women inevitably regret their decision to abort, yet the Court does not compare these regrets to the detrimental psychological and physical effects of, say, carrying a child with severe deformities to term who is certain to die soon after birth. (See p. 23 of Gonzales).
4. Women Who Are Harmed Must Sue Later: Finally, although the Court fully recognizes the harm women may suffer because of its decision, the Court states that women must first suffer harm, and then challenge the law in court after the fact. (See p. 29 and p. 41 of Gonzales).
There is a wide spectrum of political and moral beliefs on the issue of abortion. Regardless, the U.S. Supreme Court’s decision in Gonzales v. Carhart is problematic because it does not protect the health of the mother, yet rules prematurely in the face of conflicting medical evidence to determine that this abortion procedure is never medically necessary. It is important to note that Gonzales does not prevent late-term abortions. It prevents doctors from performing an abortion procedure that may be necessary to preserve a woman’s health. As a result, women facing the tragic circumstance of carrying a child who has no chance of survival outside the womb will now be forced to endanger their health to undergo procedures more dangerous. (See p. 35 of Gonzales).
The majority opinion anticipates that women will be harmed by its decision, but prefers to wait to address that harm instead of preventing it from occurring in the first place. (See p. 29 and 40-41 of Gonzales) When the Court revisits Gonzales, it should at least create an exception for a woman’s health and dispense with the rhetoric that women are incapable of making difficult choices to protect their own health and safety.