Women who want a controversial abortion procedure for health reasons have few options beyond going to court and trying to prove that a Supreme Court decision banning the practice should not apply.
For women facing serious health risks, that may not be practical.
“The problem with that is it’s not going to be an easy thing for women to invoke,” said Vikram Amar, a professor at the University of California’s Hastings School of Law. “Because time is of the essence, and litigation takes money and time, the ‘as applied’ route is not as practically feasible.”
The high court on Wednesday upheld the ban except in cases where the woman’s life might be in danger. The justices ruled that an individual — or as-applied — challenge “is the proper manner to protect the woman’s health if it can be shown that in discrete and well-defined instances a condition has or is likely to occur in which the procedure prohibited by the act must be used.”
The ruling applies to an abortion procedure that opponents call “partial birth” abortion. Of the 1.3 million abortions performed in 2000, the most recent data available, 2,200 involved this procedure, according the Guttmacher Institute.
Courts may be only recourse
People on both sides of issue agree that legal action is a woman’s only recourse if she seeks the procedure because of health reasons.
Louise Melling, director of the American Civil Liberties Union’s reproductive freedom project, said the decision is “the first time ever the court has upheld a restriction where there isn’t an exception to protect a woman’s health.”
What the ruling did leave open is the possibility of a lawsuit in which a woman could argue that the law is unconstitutional as it applies to her.
“That is troubling and inadequate,” Melling said. “Troubling because it is a radical shift in protection for women’s health and inadequate because doctors concerned about their patient should be allowed to go to the operating room, not the courthouse.”
Douglas Johnson, legislative director of the National Right to Life Committee, said that while the law contains an exception to prevent the death of a woman, “we don’t think, and Congress didn’t think, that that ever would be necessary.”
“The word health can mean anything,” Johnson said, and the ruling says an individual could bring a challenge in court over a particular case.
Roger Evans, senior director of public policy litigation and law at the Planned Parenthood Federation of America, said the ruling “appears to be saying” that if a woman needed an abortion for medical reasons and the banned procedure was the safest method, she would have two choices.
She could use a riskier procedure because the safest method is a federal crime. She also could sue, arguing it would be unconstitutional to impose the riskier method.
“As a practical matter, that’s not likely to happen,” said Evans, citing the time and cost involved as well as the woman exposing herself to unwanted scrutiny.
With nearly 90 percent of abortions performed in pregnancy, the banned procedure affects only a small number of cases.
The procedure is formally known as dilation and extraction and is also referred to as late-term abortion, D&X or Intact D&X.
It involves dilating the cervix and removing the fetus. The head of the fetus is crushed or a catheter is inserted and brain matter removed so the head can pass through the cervix.
Opponents say this amounts to partially delivering a live fetus and then killing it.
Still legal are procedures in which the fetus is removed in pieces from the womb. The Supreme Court ruling also noted that use of chemicals to kill the fetus before its removal would be legal.
“If intact D&X is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act’s prohibition only applies to the delivery of ‘a living fetus,”’ the ruling said.