by
Clarke Forsythe
May 6,
2007
The
Gonzales v. Carhart decision of April 18 is the most significant Supreme
Court abortion decision in 15 years -- since the Casey decision in
1992.
While there are still five justices who support Roe and our opponents have already introduced federal legislation that would in effect codify Roe v. Wade as the law of the land, Gonzales dramatically opens up new doors for us. The decision will allow us to apply all of our work that we've been preparing over the past several years -- in legislation, litigation, and research on the impact of abortion on women.
The decision changes the landscape in several ways:
Gonzales
has restored the guidelines from Casey that are more deferential to
state legislation.
It reinforces the importance of informed consent. Justice Kennedy
wrote for the majority:
"The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."
This
is an unprecedented passage in an opinion by a majority of the Supreme
Court justices.
For the first time in 34 years, the Supreme Court narrowed the unlimited
emotional health exception of Doe v. Bolton to a focus on "significant
health risks." It opens the door for utilizing all our research
on the negative impact of abortion on women.
It opens the door to more aggressive regulation of abortion.
It also has implications for bioethics. The Gonzales opinion shows
greater Supreme Court humility than in Casey in 1992; the new majority
will defer more to state legislatures. There is a considerably diminished
possibility that the new Supreme Court majority will create, for example,
a new "right to human cloning" or a new "right to destructive
embryo research." They will leave these decisions to the states,
where AUL's expertise is focused.
We now turn to next cases and next legislation. We're confident that
most of the cases in the lower federal courts will now be resolved
in favor of the state legislation, and we are planning new model bills
for the next legislative sessions to take full advantage of this new
opportunity. We expect to be very busy.
To help us address the hurdles ahead, we're sponsoring a conference on the Supreme Court in Washington, DC this summer with other Supreme Court experts in order to strategically plan the next stage of litigation.
Because there are still five justices on the Court who favor Roe, the continuing challenge is that abortion legislation cannot create a "substantial obstacle" to abortion "before viability." We are critically evaluating the challenges and planning for the best possible path through the courts.
In
light of Gonzales, we have more opportunities in litigation and legislation
than at any time in the past 15-20 years.


