Partial-Birth Abortion Decision Creates Opportunities for More Pro-Life Laws

National   |   Steven Ertelt   |   May 6, 2007   |   9:00AM   |   WASHINGTON, DC

Partial-Birth Abortion Decision Creates Opportunities for More Pro-Life Laws

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by Clarke Forsythe
May 6, 2007 Note: Clarke Forsythe is one of the leading pro-life attorneys and has been with American United for Life for 19 years, serving as president for eight of them. He has argued cases before federal and state court and has testified before Congress and state legislatures.

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.