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B. BANS ON "PARTIAL-BIRTH ABORTION" CANNOT WITHSTAND STRICT SCRUTINY REVIEW

The Supreme Court has repeatedly recognized that the Constitution leaves to the woman and her attending physician the choice of abortion method used to terminate a pregnancy prior to viability. The Court has emphasized the "central role of the physician, both in consulting with the woman about whether to have an abortion, and in determining how any abortion [is] to be carried out".⁷³ Indeed, "because abortion is a medical procedure . . . the full vindication of the woman's fundamental right necessarily requires that her physician be given 'the room he needs to make his best medical judgment'".⁷⁴

As with all other areas of medical treatment, the decision concerning the course of medical treatment - like other decisions concerning one's bodily integrity and autonomy - belongs to the individual, not the state. Over a century ago, the Supreme Court recognized the fundamental importance of an individual's control over his or her body. As the Court explained, "[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others . . .".⁷⁵

Since Botsford,⁷⁶ a long and unbroken line of Supreme Court decisions have afforded constitutional protection to an individual's "most basic decisions about...bodily integrity". Casey, 505 U.S. at 849. The Court repeatedly has held that states lack the constitutional authority to prescribe an individual's course of treatment or to bar refusal of treatment even when the state is acting to further substantial interests. For example, the Court has recognized a criminal defendant's right to refuse antipsychotic drugs during trial, Riggins v. Nevada,⁷⁷ and the right of a competent individual to terminate life-sustaining treatment, Cruzan v. Director, Missouri Dep't of Health.⁷⁸ The Court has rejected a state's attempt to conduct a surgical operation to remove a bullet from a robbery suspect, Winston,⁷⁹ and has rejected the forcible pumping of a defendant's stomach to obtain evidence of a crime, Rochin.⁸⁰ Underlying the constitutional right of bodily integrity and autonomy is the recognition that "our notions of liberty are inextricably intertwined with our ideas of physical freedom and self-determination".⁸¹

There would be little debate that government could not, within the bounds of the Constitution, require a breast cancer patient to endure a radical mastectomy, when in consultation with her physician, she chose a lumpectomy instead. Nor could a patient with heart disease be forced to have by-pass surgery rather than drug therapy to reduce his high blood pressure. The Constitution ensures that an individual - not the state - has the right to assess the risks and benefits of alternative medical procedures and to choose the procedure he or she finds most appropriate, even if others might disagree with that choice. "The root premise is the concept, fundamental in American jurisprudence that '[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body' ".⁸²

Indeed, as Justice Souter recently observed, "[c]onstitutional recognition of the right to bodily integrity underlies . . . the affirmative right to obtain medical intervention to cause abortion".⁸³ Similarly, in Casey,⁸⁴ the court noted that constitutional protection for a woman's right to choose "is a rule of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on the power to mandate medical treatment or bar its rejection",⁸⁵ and that state regulation of the abortion decision "touch[es] . . . upon the very bodily integrity of the pregnant woman".⁸⁶ As Justice Blackmun recognized, "compelled continuation of pregnancy violates a woman's right to bodily integrity by imposing substantial physical intrusions and significant risks of physical harm".⁸⁷

Cases concerning abortion restrictions that implicate the bodily integrity strand of the right to privacy remain consistent with these principles. In Danforth,⁸⁸ the Supreme Court invalidated a ban on the performance of saline amniocentesis abortions, which at the time was the most common method of second-trimester abortion. The Court held that the ban on the saline procedure intruded on the woman's constitutional right to choose, closely examining whether the statute actually furthered the state's compelling interest in maternal health in the least restrictive manner possible.⁸⁹ The Court concluded that Missouri's saline ban imposed a crushing burden on women's access to safe abortion procedures. As Justice Blackmun explained, "[t]he State . . . would prohibit the use of a method which the record shows is one of the most commonly used nationally by physicians after the first trimester and which is safer, with respect to maternal mortality, than even continuation of the pregnancy until normal childbirth".⁹⁰ Although Danforth appropriately recognized that, prior to viability, the state has a compelling interest in preventing the performance of unsafe procedures, the Danforth Court found that the state was not furthering that interest when it forces doctors to use techniques that are many times more likely to result in maternal death.⁹¹ Because the bans on "partial-birth abortion" similarly restrict the majority of first and second trimester abortions without furthering the state's interest in maternal health, they are unconstitutional under Danforth.

Similarly, the United States Supreme Court has struck down a "choice of method" statute which applied post-viability because it "required a 'trade-off' between the woman's health and fetal survival and failed to require that maternal health be the physician's paramount consideration".⁹² Because the bans similarly fail to make maternal health the "paramount consideration," either pre- or post-viability, and in fact jeopardize maternal health significantly, they are unconstitutional under Thornburgh⁹³ and Schulte.⁹⁴

On their face, bans on "partial-birth abortion" prevent a woman from choosing, in consultation with her physician, her desired method of terminating a pregnancy. Not only will preventing a woman from obtaining a suction curettage or a D&E abortion once she has decided to terminate her pregnancy flatly violate her right to make the "decision concerning the method of abortion,"⁹⁵ it denies her physician the discretion to use his or her best medical judgment "in determining how [the] abortion is to be carried out".⁹⁶ Indeed, this type of ban handcuffs physicians, restricting the evolution of methods which has made abortion increasingly safe since 1973. The Supreme Court was prescient in 1976 when it struck down a ban on the use of "saline or other fluids" in part because it would prohibit the use of "other methods that may be developed in the future and that may prove to be highly effective and completely safe".⁹⁷

Significantly, the alternatives to "partial-birth abortion," inducing fetal demise at the beginning of every procedure or performing a hysterotomy or hysterectomy, involve far more substantial intrusions upon a woman's bodily integrity and autonomy than those of removing a bullet or forcibly pumping a stomach that the Supreme Court held unconstitutional in Winston,⁹⁸ finding that "the intrusion on respondent's privacy interest entailed by [a surgical operation to remove bullet] can only be characterized as severe" and Rochin, 99 finding that forcible stomach pumping was "so brutal and so offensive to human dignity" as to violate due process. Hysterotomy and hysterectomy are major surgical procedures, carrying higher risks of mortality and morbidity, and exposing women to greater risks in future pregnancies. On the other hand, ensuring fetal demise in utero using a chemical injection or other medical intervention is very difficult, if not impossible, especially prior to 20 weeks, and introduces additional, unnecessary and, therefore, unacceptable risk for the patient. Partial-birth abortion bans would, therefore, impermissibly force women to submit to additional and unnecessary medical procedures as the price for seeking their preferred method of abortion. It is simply intolerable to require a woman "to forfeit one constitutionally protected right as the price for exercising another".¹⁰⁰

Thus, states cannot meet their burden of establishing that the bans are narrowly tailored to meet a compelling state interest. All medical evidence demonstrates that the abortion procedures prohibited by bans on "partial-birth abortion" are not only safe and within accepted medical practice, but they may be the safest available procedures for some women.¹⁰¹ For a detailed discussion of abortion methods and their relative safety, see generally, Richmond Medical Center for Women v. Gilmore.¹⁰² On the other hand, the bans do not prohibit techniques that are many times more likely to cause maternal death. Accordingly, like the unconstitutional ban on saline abortions struck down in Danforth, the bans "fail as a reasonable regulation for the protection of maternal health."¹⁰³

The only state interests that can justify restricting women's choice of abortion pre-viability are the state interests in dissuading a woman from having an abortion, in potential life or in maternal health.¹⁰⁴ Bans on "partial-birth abortion" serve none of these permissible state interests. See Planned Parenthood v. Doyle.¹⁰⁵ As Chief Judge Posner wrote in reviewing the Wisconsin statute:¹⁰⁶

[the Act] does not seek to make the woman more informed. It emphatically does not protect her health - it endangers her health . . . . It does not protect fetal life, for it merely bans one method of abortion, leaving all others unregulated regardless of the state the pregnancy has reached.

By eliminating the D&E and even some suction curettage abortions from a physician's repertoire, thus forcing a woman to obtain abortions using less safe techniques, the bans clearly would not serve the state's interest in protecting maternal health.¹⁰⁷ Even banning D&X alone would put women's health at risk, and is "arbitrary to the point of irrationality".¹⁰⁸ Moreover, the bans do not serve a state interest in potential life since they do not operate to "dissuade" the women from having the abortion and because they would allow abortions to be performed using a hysterectomy or hysterotomy, or where fetal demise is induced before the fetus is partially removed from the uterus. Thus, the state prevents no abortions and saves no fetuses; it merely "shifts the locus [of an abortion] from the birth canal to the uterus".¹⁰⁹ As Chief Judge Posner asked rhetorically, "what interest has the state in such a shift"?

Rather than claiming that the statutes banning "partial-birth abortion" served one of these state interests, though, the Seventh Circuit appeared to recognize a new state interest in banning a "gruesome" medical procedure, Hope Clinic,¹¹⁰ and allowed this new state interest to trump women's constitutional rights.

If the Seventh Circuit's determination that the state has an interest in preventing "gruesomeness," or promoting the moral view that all abortion is wrong, is adopted by the Supreme Court, there is no reason this interest could not be used to justify bans on any sort of medical procedure involving women's reproduction which opponents find gruesome or "immoral". For example, opponents of RU-486 will assert that that method of abortion is "gruesome" and "immoral" and should be banned as well. Indeed, Chief Judge Posner pointed out that proponents of bans on "partial-birth abortion" simply "want to dramatize the ugliness of abortion",¹¹¹ in an effort to turn public opinion against all forms of abortion, to deter physicians from performing as many abortion procedures as possible, not just D&X, and to express the view that fetal life is more important than women's health.¹¹² As Judge Manion wrote in dissent in the prior Seventh Circuit opinion concerning the Wisconsin statute, revealing his anti-abortion bias:¹¹³

There is a legitimate moral interest as well. The ban on the D&X procedure can be deemed appropriate simply because of the grotesque nature of the procedure itself and the wide public awareness of it. That is not to say that all methods of legal abortion are not equally lethal and unseemly. As the court acknowledges, all methods are gruesome. But this is the one method that has been at least partially exposed to the light of day, and this exposure has apparently caused the Wisconsin legislature to label the D&X immoral. And certainly Wisconsin can legislate morality.

Both the application of the undue burden standard to bans on particular methods of performing abortion and the recognition of a state interest in preventing "gruesome" or "immoral" abortion procedures threaten to further erode women's constitutional right to abortion in the United States. The undue burden standard leaves women vulnerable to procedure-by-procedure bans on abortion, potentially subjecting them to more significant intrusions on their bodily integrity than would be tolerated for any other group of people. Moreover, recognition of a state interest in preventing "immoral" abortions that can trump a woman's right to obtain a pre-viability abortion represents a lawless departure from Roe¹¹⁴ and Casey.¹¹⁵ The Seventh Circuit's complete failure to require that Wisconsin and Illinois establish that their statutes served permissible state interests essentially guts the protections of those cases, and opens the door to restrictions on abortions justified only by a legislature's determination that those abortions are "immoral". Thus, abortion rights advocates and those who care about women's health will hold their breath this spring while we continue to work to preserve the constitutional right to abortion that we have relied upon for over twenty-five years.*

See also In the Courts, Stenberg v. Carhart

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