NWLC: The Supreme Court Should Not Allow One Moral Viewpoint to Trump Women's Health
Editor's Note: The following is a summary of the National Women's Law Center's amicus brief in the Supreme Court's upcoming abortion cases. Thanks to Gretchen Borchelt of NWLC for providing this summary.
The brief submitted on behalf of the National Women's Law Center and 31 other organizations committed to the safest health care for women highlights the ways in which the Partial Birth Abortion Ban Act of 2003 limits a woman's ability to secure the safest health care - the option that she may choose for personal, moral and religious reasons as well. The brief also describes the variety of serious adverse consequences to women's health, financial security, and future well-being that can result from the Act, which limit women's ability to participate fully and equally in society.
The Act's unconstitutional denial of women's access to the best and safest health care can have serious adverse consequences. The evidence presented by a host of respected physicians in the cases challenging the Act demonstrates that women may be virtually unable to obtain any safe abortion at all during and after the fourth month of pregnancy because of the Act's broad reach, and, even if narrowly construed, the Act can deny women access to the safest available procedure. In addition to being unconstitutional under Stenberg v. Carhart and a long line of other decisions of the Court, this threat to women's health has serious potential adverse consequences that can continue throughout a woman's life and that perpetuate the historically unequal status and economic condition of women in our society. Adverse health consequences can include debilitating conditions requiring invasive and expensive medical procedures, problems with future pregnancies, permanent infertility and other serious health impairments, and even death. These health consequences can lead to women's loss of jobs and wages, their inability to secure health insurance and adequate health care in the future, and can impair their ability to care for their families and themselves.
The Act impermissibly imposes one moral viewpoint on women, denying them personal dignity and equality. The Act violates due process because it represents an unwarranted intrusion into a woman's most personal choices for impermissible reasons. It not only denies women access to safe health care, but also improperly substitutes the government's view of morality for the strongly held personal, moral and religious beliefs of the woman. The Act bars a woman who may be facing grave risks to her own health and a tragic medical condition of her fetus from access to a procedure that she believes is the most humane, and which allows her to hold and grieve over her fetus in accord with her deepest personal desires and the moral and religious dictates of her conscience. Her beliefs, along with her determination to preserve her ability to bear children in the future and avoid other serious adverse health consequences, require respect under the Constitution.
As the Court recently affirmed in Lawrence v. Texas, the government may not intrude into individuals' most private choices based solely on its own moral judgment. The prohibition against government intrusion is especially strong when the government's imposition of its own moral code not only ignores the moral code of the woman involved, but also has serious adverse consequences for the well-being of the woman and her family.
The State's interference on "moral" grounds with women's most personal health care decisions and the implications that interference raises for women's equal participation in society echo the "personal dignity" and "equality" concerns that led the Court to find that the Texas sodomy law at issue in Lawrence was unconstitutional - the right of individuals to participate fully and fairly in society and their right to make personal choices "and still retain their dignity as free persons."
The Act unconstitutionally violates women's bodily integrity. Denying women access to a medical procedure that represents the safest medical option, and one they also might choose for deeply personal, moral or religious reasons, further violates women's right to due process because it interferes with their basic bodily integrity. Just as the government may not force anti-psychotic drugs on a non-dangerous inmate or pump a suspect's stomach for evidence, the government may not force a woman to endure a more invasive and more dangerous procedure in order to obtain an abortion after the first trimester, or, because of the breadth of the Act, to bar her access to virtually any procedure at all.