The Supreme Court heard two cases yesterday regarding the federal ban on certain abortion procedures used in the second and third trimester of pregnancy. The two cases, Gonzales v. Planned Parenthood and Gonzales v. Carhart, challenge the so-called Partial-Birth Abortion Ban, which would criminalize doctors for performing a procedure that is medically known as dilation and extraction. The ban was passed by Congress in 2003 without an exception for the health of a pregnant woman. Reproductive rights advocates are also concerned that the law is too vague and could be applied more broadly to other abortion procedures.
Yesterday’s hearings included several questions by justices as to whether the procedure in question is ever medically necessary for the health of a pregnant woman. Congressional hearings found that women never need dilation and extraction for the sake of their health, but lower courts have ruled that this finding was false, NPR reports. In fact, during a previous hearing at a lower court, even a doctor in support of the ban testified “he had used and would use the procedure in some circumstances,” according to NPR. Justice Stephen Breyer, who wrote the majority opinion that struck down a similar Nebraska state ban in 2000, noted that women with serious health problems should not have to face a judge in order to have a procedure that is deemed medically necessary by her physician; “I don’t see how it’s going to work without some people suffering serious illness as a result of mistakes by the judge,” Justice Breyer told the court.
Court Justice Anthony M. Kennedy, a swing voter on abortion cases who will likely be in a position to control the outcome of the case, questioned both sides, asking about the medical situations that might necessitate a dilation and extraction abortion, the New York Times reports. Justice Kennedy pointed out that the dilation and extraction procedure might actually be safer in some circumstances.
President Bush’s two court appointees were watched closely yesterday, as both of them are against abortion rights. According to several reports, including Reuters and the New York Times, Chief Justice John Roberts seemed to support the government’s position on the ban by bolstering the arguments in support of the ban. Justice Samuel Alito, on the other hand, did not ask any questions of either side.