Stage set for court’s biggest abortion case in years, says Catholic law school prof

by Ann Carey

NOTRE DAME, Ind. – With the U.S. Supreme Court agreeing in February to consider the constitutionality of a federal law banning partial-birth abortion, the stage is now set for “the most important abortion case the Supreme Court has seen in years.”

That’s the assessment of O. Carter Snead, an associate professor of law at the University of Notre Dame Law School who specializes in the intersection of law, science and medicine.

He joined the Notre Dame faculty this academic year after having served as general counsel for the President’s Council on Bioethics. He remains a consultant to that body.

The U.S. Supreme Court said Feb. 21 it will consider the constitutionality of the federal Partial-Birth Abortion Ban Act. The court agreed to hear a Bush administration appeal of a U.S. appeals court ruling that the 2003 law is unconstitutional because it does not include an exception for the health of a pregnant woman.

In an interview with Today’s Catholic, newspaper of the Fort Wayne-South Bend Diocese, Snead explained that in its 1973 Roe v. Wade decision, which legalized abortion virtually on demand, the high court said any limitation on abortion has to include an exception for the health of the mother in addition to an exception for the life of the mother.

Roe’s companion decision, Doe v. Bolton, defined the health rationale for an abortion to include any factor related to a woman’s well-being.

In Doe, “health is an enormously expansive concept that includes factors like economics and familial or psychological well-being,” Snead said. “We’re not just talking about grievous physical injuries — indeed, this understanding of ‘health’ is not limited to physical injuries at all. It could include a multiplicity of other harms, including economic injuries.”

He said the court “vested in the abortion provider himself the discretion to determine whether or not a health interest is implicated.”

Because of this health exception, Snead explained, it is possible to get an abortion for virtually any reason at all through nine months of pregnancy.

He said the court has a new opportunity to define what the health of the mother means when it considers the challenge to the Partial-Birth Abortion Ban Act.

“It’s hard to imagine the court could pass on deciding that very important issue, given that a central issue presented in this case is what constitutes ‘substantial medical authority’ to invoke the health exception,” he said.

Snead was optimistic that with Justice Samuel Alito Jr. replacing Justice Sandra Day O’Connor, often considered a swing vote, a majority of the justices will vote to uphold the federal Partial-Birth Abortion Ban Act.

In 2000, in Stenberg v. Carhart, the court ruled 5-4 that a Nebraska partial-birth abortion ban was unconstitutional. O’Connor voted with the majority, who said the problem with the law was it had no exception for the health of the mother.

Snead said Nebraska lawmakers did not put in the health exception because it would have rendered the law meaningless.

“They had it on very good authority from the American Medical Association and other venerable bodies that this brutal procedure was never necessary to preserve a woman’s health,” he said.

The best outcome for the pro-life community would be if the Supreme Court, in considering the constitutionality of the federal ban, were to restrict to its common-sense meaning the definition of health as it relates to any decision about abortion, Snead said.

He said the court should also let a decision about the mother’s health be made by the most reasonable person possible, rather than by the abortionist who, he said, has a financial interest in the outcome.

Those actions by the court would make the federal ban permissible, Snead said. The 30-plus states whose bans were similar to the Nebraska ban and were struck down by the Stenberg v. Carhart decision could enact laws identical to the federal ban, he said.

If the federal ban is upheld, states and the federal government also could enact “vastly more meaningful restrictions on abortion,” according to Snead.

Snead said public opinion about partial-birth abortion has shifted the debate on abortion dramatically because opposition to banning the procedure, he feels, has highlighted the extremism of the movement to keep abortion legal.

He also said he finds it “simply astonishing” the movement opposes any laws that would give more information about abortion to a pregnant woman who is considering having one.

“For a movement that frames itself as devoted to autonomy and choice, these efforts to restrict the information available to women, thus making their choices less meaningful, are unexplainable and inexcusable,” Snead said.

He said informed consent laws, especially those allowing women to see high resolution ultrasound pictures of their unborn babies, would greatly reduce the number of abortions.

“The biological truth will speak for itself,” Snead said. “When people see what an unborn child is, they come to understand who she is: namely, a vulnerable human being deserving love and protection.”

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