Regulating Abortion in the United States after Gonzales v Carhart

Abstract

In Gonzales v Carhart' the United States Supreme Court upheld the constitutionality of the Partial-Birth Abortion Ban Act of 2003-a federal statute criminalising a medical procedure known colloquially as partial-birth abortion, but referred to by physicians as intact dilation and extraction ('D&X').2 The decision's significance is threefold. First, Gonzales shatters a decade-long stalemate on abortion regulation. Not only is the decision the first to uphold a ban on a specific abortion procedure, but it also represents the first time that the Court has approved an abortion restriction that fails to provide an exception for the health of the pregnant woman. In this, the decision is a significant retreat from the protection of a woman's reproductive choice afforded by Roe v Wade,3 Planned Parenthood v Casey4 and Stenberg v Carhart.5 Second, the emphasis Gonzales places on the claim that women suffer from mental health problems after abortion, and why it is thus necessary to protect women, represents an important victory for those who have sought to reposition the anti-abortion movement as protectors, rather than critics, of women. At the same time, by appearing to suggest that a woman is best protected by reducing her reproductive choice, the decision points to a troubling 'neo-paternalism' in the regulation of abortion. Finally, the 5-4 decision in Gonzales suggests an emerging, if fragile conservative majority on the Court and, in this, validates the anti-abortion movement's strategy of 'pushing for step-by-step restrictions on abortion while working to change the composition of the Supreme Court'.6 This note interweaves these three themes to explain why Gonzales may be portentous not just with respect to the future direction of abortion regulation, but also the future direction of the Court itself.