Since Roe, Protections for Women's Health Embedded in Abortion Law

The Supreme Court's jurisprudence on abortion rights is clear: the United States Constitution protects each and every woman against any law that would force her to carry to term any pregnancy, including a post-viability pregnancy, which jeopardizes her life or her health.  Since Roe v. Wade, the Court has repeatedly held that no state interest in fetal life justifies restrictions on abortion that would subjugate a woman's interest in preserving her own health.      

The constitutional requirements for a health exception were first set out in Doe v. Bolton, the companion case to Roe v. Wade.  The Supreme Court explained, "medical judgment may be exercised in light of all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the well-being of the patient.  All these factors may relate to health."  Since Doe was decided, courts have consistently interpreted health exceptions to post-viability abortion bans as including both psychological and physical health.  For example, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court noted, "it cannot be questioned that psychological wellbeing is a facet of health."  That decision, which reaffirmed the essential holding of Roe, made fetal viability the tipping point in a State's ability to restrict women's ability to obtain abortion but explicitly reaffirmed the paramount importance of a woman's health and life.  Before viability, the Court held, a pregnant woman has the constitutional right to have an abortion "and to obtain it without undue interference from the State."  And while the Supreme Court allowed States to restrict or even prohibit post-viability abortions, it held that women must be able to obtain such abortions to protect their life or health.   

The Court's decision in Gonzales v. Carhart does not alter the constitutional standard about the scope of a health exception in post-viability restrictions on abortion.  By holding that a health exception is not necessary where a method of post-viability is banned, that ruling radically departed from 30 years of precedent requiring a health exception to any restriction on post-viability abortion.  It did not, however, address the Constitution's requirement that any law banning all post-viability abortions must include health and life exceptions as set out in Doe. 

Abortion opponents have long and consistently tried to erode or eradicate health exceptions, often arguing that health is defined so broadly that it allows a woman to obtain an abortion under any circumstances.  This criticism is frequently presented in a misleading manner that suggests that a woman is not entitled to a pre-viability abortion unless her life or health is at risk.  In other contexts, anti-abortion critics claim that, as a result of the Supreme Court's comprehensive definition, women are routinely obtaining post-viability abortions for frivolous reasons, in spite of the fact that number of post-viability procedures performed in this country is miniscule.           

One form of attack on health exceptions comes in the guise of a statutory definition of the circumstances constituting a threat to a woman's health as a "serious risk of substantial and irreversible impairment of a major bodily function." Courts in some states where this definition was passed into law, such as Kansas, have struck down this definition as unconstitutionally invalid for failing to encompass the broad concept of health set out in Doe.   

Additionally, abortion opponents seek to exclude mental health, arguing that this component of the health exception is exploited by women and physicians to justify "unnecessary" abortions.  Those who advance this argument demonstrate a serious lack of understanding of, and compassion for, the complex and difficult personal decisions women must make in those rare situations when a post-viability abortion is an option.  For example, the mental health exception permits a woman to terminate a pregnancy when severe fetal abnormality is diagnosed.  Inclusion of mental health among the permissible grounds for post-viability abortion is critical to prevent grave threats to women's health, and to facilitate an individual woman's ability to make the choices that are right for her. 

Attempting to restrict the constitutionally required health exception for post-viability abortions by imposing requirements that the woman suffer from a serious or significant medical condition and/or excluding mental health considerations, would compromise women's health by limiting the ability of physicians to consider all aspects of health in exercising medical judgment about the most appropriate form of treatment.  Such limitations would also undermine the core values of dignity, self-determination, and equality that underlie all reproductive rights.   

Editor's Note: The author prefers that her photo not accompany the post.