Remember when Congress debated the partial-birth abortion ban and abortion advocates insisted that the procedure was necessary for women’s health? Remember when they challenged the constitutionality of the law in Gonzalez v. Carhart? The Supreme Court held that the law is constitutional even without a specific non-life-endangering health exception (the law already offered a life-endangerment exception). Five years later, no specific, personal stories have emerged of women whose health has been negatively impacted by the unavailability of the partial-birth abortion procedure — but more than 11,000 lives have been saved. Alliance Defense Fund attorney Casey Mattox reports:
The Court didn’t have to decide that a health exception was always unnecessary as a factual matter, deferring to Congress’s judgment on the matter. It simply refused to declare the whole law unconstitutional because of the theoretical possibility that a woman might need an abortion for a non-life-threatening health reason. But importantly, the Court held that abortionists could bring future challenges to the law on behalf of actual women who needed a partial-birth abortion for true health reasons.
Hours after the decision, Planned Parenthood was still warning of its imminent negative impact on women’s health. The battle seemingly joined, Justice Ginsburg’s dissenting opinion, citing the ACOG/Kagan language, specifically invited as-applied challenges on behalf of the alleged thousands of women who needed the partial-birth abortion procedure for health reasons: “One may anticipate that such a preenforcement challenge will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.”
Over five years later, Justice Ginsburg and the nation still wait. Although women’s health was allegedly immediately harmed by the decision, we have not yet seen an as-applied challenge on behalf of one of these women, nor have we seen even one documented story of a woman whose health was impacted by the unavailability of a partial-birth abortion. If we accept Guttmacher’s figure of approximately 2,200 partial-birth abortions per year, then the decision in Gonzales – upholding the law and lifting the injunction against it – has prevented 11,000 partial-birth abortions from occurring. More
