The first blow to reproductive freedom if John Roberts is confirmed will be the gutting of “the life and health of the mother” standard for abortion regulations.
The 2000 Supreme Court ruling in Stenberg v. Carhart -- a 5-4 decision with Sandra Day O’Connor in the majority -- is known for striking down a Nebraska ban on what anti-abortion groups inaccurately call partial-birth abortion.
But the Court was not expressing support for a particular abortion procedure. It was applying a key principle of Roe v. Wade: you can ban abortion after the fetus is viable, "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."
In other words, in those rare situations when a pregnancy could accelerate the effects of diabetes, exacerbate heart disease, spread breast cancer or otherwise cause significant health problems, the wrenching decision whether or not to have a late-term abortion procedure is a decision that, under our Constitution, must remain between a woman and her doctor.
This recent Court ruling will be revisited soon, because Congress and George Bush enacted the "Partial Birth Abortion Ban Act of 2003" in defiance of our Constitution -- explicitly refusing to include the constitutionally mandated exception when the health of the mother is in danger.
And one of the reasons why anti-abortion advocates purposely left out the health exception was that they hoped the Court’s composition would change by the time the law reached the Court for review.
A federal appeals court, one step below the Supreme Court, found the law unconstitutional just last month. Roberts may be seated just in time for the gambit to work.
Furthermore, we know from recently released documents from Roberts’ tenure in the Reagan Administration that he fundamentally disagrees with Roe.
And if you don’t agree with Roe, you don’t agree with Stenberg, you don’t agree that a health exception is backed by the constitutional right to privacy, and no longer will a pregnant woman’s medical decisions be between her and her doctor alone.
Does it make political sense to fight Roberts on these grounds? Yes it does. It is a fallacy that the public supports blanket bans of late-term abortion procedures.
An ABC News poll from 2003 showed that while 62% believed "the late-term abortion procedure known as dilation and extraction, or partial-birth abortion" should be "illegal," it also found that if the procedure "would prevent a serious threat to the woman’s health," public opinion turns, with 61% saying the procedure should then be "legal."
The public does not want its government interfering with medical decisions, and does not want Supreme Court judges that would permit such a violation of privacy.
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