In a victory for reproductive choice, the U.S. Supreme Court today decided 5-4, to strike down Nebraska's so-called "partial-birth" abortion ban. Nebraska's ban, like those in other states, defined the prohibited procedures in intentionally vague language. The ban was not limited to a certain type of procedure nor was it limited to late-term abortions. It was an attempt to prohibit as many abortion procedures as possible and to scare doctors out of performing even first-trimester abortions for fear of prosecution.
Nebraska's ban, which is similar to those passed in over thirty other states, including Ohio, would have prohibited abortion procedures which are commonly used throughout pregnancy. Many of these bans fail to provide adequate exceptions for the life and health of the woman, and disregard the framework established in prior abortion cases, which requires that the health and bodily integrity of the woman must take priority over fetal interests. These bans put women at risk by denying them the option of a procedure that is the safest for some women in some circumstances.
The outcome in the Supreme Court case will affect Ohio's "partial-birth" abortion ban. The Ohio General Assembly voted in favor of a new ban last month and Governor Bob Taft signed it into law. This is Ohio's second attempt at passing such a law. The first one was permanently enjoined by a federal court because it was impermissibly vague and posed an undue burden on a woman's constitutional right to obtain an abortion.
The Nebraska ban was challenged by Dr. Leroy Carhart, a Nebraska abortion provider. Dr. Carhart was troubled by the ban because its wording describes the steps involved in most of the first- and second-trimester abortions he performs. Because Dr. Carhart does not perform third-trimester abortions, the ban was not challenged as it applies to late-term abortions. Dr. Carhart was represented by the Center for Reproductive Law and Policy in New York. The American Civil Liberties Union filed an amicus brief on behalf of other physicians and organizations with an interest in the outcome of the case.
Today's decision was authored by Justice Breyer, who was joined by Justices O'Connor, Souter, and Ginsburg. Chief Justice Rehnquist as well as Justices Scalia, Kennedy, and Thomas dissented. The Court held that the law was unconstitutional because it imposed an undue burden on a woman's ability to obtain an abortion, and because it lacked an adequate exception for the health of mother.
In related litigation, the ACLU of Ohio is challenging Ohio restrictions which would require that a woman meet with a physician at least 24 hours before having an abortion and that juveniles seeking abortions obtain parental consent beforehand. The case is being handled by Cincinnati attorney Al Gerhardstein and Cleveland attorney Linda Rocker.
