What a difference a justice makes for women's rights

April 20, 2007|By ELLEN GOODMAN

BOSTON -- May I remind you what else was happening on the very day in 2003 when Congress passed the Partial-Birth Abortion Ban Act? In Florida, the Legislature passed a law that gave politicians the power to override Terri Schiavo's wishes and have her feeding tube reinserted.

Up and down the East Coast, under two Bush administrations - George's and Jeb's - politicians were playing doctor and God and patient, trumping medical opinion and individual rights.

May I also remind you of the day President Bush signed the Partial-Birth Abortion Ban bill into law? The photo op had him surrounded by an all-male chorus line of legislators. These men were proudly governing something they never had: a womb.

What a long and wounding debate this has been. The moment this procedure was dubbed "partial-birth abortion," pro-lifers won the PR war.

They took women out of the picture, literally. The line drawings that illustrated congressional hearings often showed a headless woman bearing a perfect, healthy baby of six months' or more gestation.

When President Bill Clinton vetoed the ban, he surrounded himself with women who had been through pregnancies that came with an awful vocabulary: words such as hydrocephalus and polyhydramnios. Those women, and their obstetricians and gynecologists, asked for only one exception to the ban. They wanted an exception for serious health risks.

Indeed, in 2000, the Supreme Court struck down a Nebraska law by 5-4 because it didn't have such a health exception. The court called it an "undue burden" on a woman's right to abortion. Nevertheless, in 2003, with the boldness of a party that controlled two branches of government and was making a bid for the third, Congress passed the law directly confronting that ruling.

Now women are again among the "disappeared." On Wednesday, a new Supreme Court upheld the ban, also by 5-4, proving what a difference the turnover in a justice or two can make.

For many years, Justice Sandra Day O'Connor had kept an uneasy peace in the court and maybe the country. She upheld Roe v. Wade while allowing states to regulate abortion as long as they didn't place an "undue burden" on a woman's right to decide.

In many ways, the first justice who had ever been pregnant defined which burdens were "undue." She said it was an undue burden to ban any procedure without a health exception. She said that if there was any disagreement among doctors about safety, it was to be decided in favor of the woman's health.

But the new court majority has decided something quite different. In an opinion tortured by an attempt to deny what he was doing - overturning a precedent - Justice Anthony M. Kennedy wrote that because only a small minority of women seeking abortions would be affected and because there was another possible procedure, the ban was constitutional.

Writing for the majority, Justice Kennedy said it was fine for the politicians to make medical decisions, fine to eliminate health exceptions, fine to overturn precedent.

Let me remind you of something else. When Samuel A. Alito Jr. was a justice-wannabe to replace Justice O'Connor, he reassured lawmakers he would respect precedent on abortion. When John G. Roberts Jr. talked about his reverence for precedence and the court, he said he got a "lump in my throat whenever I walked up those marble steps." That lump in his throat is now a chill up my spine.

Justice Ruth Bader Ginsburg did more than hint at the loss of Justice O'Connor in her blistering opinion for the now-minority. The court, she noted, is "differently composed" now.

The court's opinion "tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists," she wrote. "The court's defense of [the ban] cannot be understood as anything other than an effort to chip away at a right declared again and again by this court."

How many times must it be said that those who support a woman's right to decide want abortion to be safe, legal and rare? As of today, women whose pregnancies come with alarming words and dangerous diagnoses live in a world that is a little less legal and a lot less safe.

Ellen Goodman is a columnist for The Boston Globe. Her column appears Fridays in The Sun. Her e-mail is ellengoodman@globe.com.

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