Reproductive Rights Litigator Discusses Carhart’s Impact

BY MEGAN HUGHES

Priscilla Smith, Supreme Court litigator in Gonzales v. Carhart, spoke about the impact the case will have on reproductive rights litigation in Austin East on September 26th. Approximately sixty students attended the talk, entitled “Gonzales v. Carhart: Expanding Restrictions on the Right to Choose”, and many stayed late to ask questions.

In the 2007 Carhart case, the Supreme Court upheld the federal ban on so-called “partial birth” abortions. Smith was an attorney with the Center for Reproductive Rights for 13 years, where she served as the Director of the Domestic Legal Program from 2003-2007. She is currently a visiting fellow at the Information Society Project at Yale Law School, where she will be working on the Teaching and Scholarship Initiative, a project to shift and expand the dialogue around reproductive rights issues in the legal academy.

The talk began with a discussion of terminology. The speaker corrected the common misconception that the “partial birth” abortion ban refers to post-viability, third trimester abortions. “Partial birth abortion” is a term chosen as the result of focus groups conducted by anti-abortion activists. In reality, the statute at issue in the case can impact abortions as early as twelve weeks into a pregnancy.

Ms. Smith argued that the Court’s decision is a radical departure from prior reproductive rights jurisprudence, raising issues of stare decisis and what the state interest is in abortion bans. The Carhart opinion upheld the federal “partial birth” abortion ban despite the 2000 Stenberg v. Carhart opinion striking down a substantially similar Nebraska law.

In Stenberg, the Court struck down the state statute for its broad language and lack of an exception for the health of the mother, and argued that whenever substantial medical authority believes a ban would hurt women’s health, the ban should be struck down. Smith called this the “tie goes to the woman” rule, because when substantial medical authority exists to say that a ban would harm women’s health, even if there is some dispute, the Court should favor women’s health. Justice Kennedy dissented in the Stenberg case. In Carhart, Justice Kennedy’s prior dissent became the majority opinion. The federal ban in Carhart was upheld despite the lack of a health exception.

According to Smith, Justice Kennedy relied on a state interest in protecting individuals from making a decision that they will regret, since he believes that at least some women will regret undergoing the procedure known as “partial birth abortion”.

Ms. Smith called this new state interest “ludicrous” and proposed that it could be used to justify a ban on sex without condoms, since surely some individuals come to regret engaging in sexual intercourse without condoms. Ultimately, according to Smith, the federal “partial birth” abortion ban will harm women’s health. Doctors will be forced in some cases to either perform a less safe procedure, since the procedure covered by the ban is sometimes safer than alternative procedures, and it will prevent some women from obtaining abortions. The only difference between the intact procedure covered by the federal ban and the alternative nonintact procedure is the intent of the provider. Since the provider’s intent is difficult to measure, physicians will be worried that even procedures permitted under the law will expose them to potential criminal liability. Smith asked whether any attorneys would be willing to practice law under such circumstances, and argued that abortion providers are now facing this same decision.

The talk was co-sponsored by HLS for Choice, the Human Rights Program, the Teaching and Scholarship Initiative, CR/CL, ACS, HLS-ACLU, the Harvard Law & Health Care Society, Harvard Medical Students for Choice, Harvard Students for Choice, and HLS-Lambda.

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