The U.S. Supreme Court has instructed women and girls experiencing crisis pregnancies to come to the courtroom. The Court’s recent decision in Gonzales v. Carhart, 127 S.Ct. 1610 (2007), stated that a lawsuit challenging a ban on so-called partial birth abortion should not have been brought by doctors who treat women.  Rather, the Court suggested that the challenge could only be brought by a pregnant woman who could prove why she needed the banned procedure to protect her health. 

In legal terms, rather than asserting that a statute “on its face” is unconstitutional, it must be challenged “as applied” to an individual woman’s circumstances. There has been considerable, and justified, criticism of the Supreme Court for upholding a ban that fails to protect women’s health.  This significant altering of legal mechanisms for enforcing women’s rights is similarly appalling. Justice Ginsburg’s dissenting opinion recognized this as a huge set-back for reproductive rights. She noted that virtually all of the abortion cases reaching the Supreme Court since Roe v. Wade, 410 U.S. 113 (1973), have involved facial attacks on state statutes, and questioned what the majority would now consider a “proper lawsuit.” 

Is it proper for a woman in a medical crisis to have to delay treatment so she can get the treatment she needs? 

Such trauma by trial is not hypothetical. For the past two weeks in Ireland a 17 year old pregnant girl had been seeking the High Court’s permission to travel to England for an abortion. The teenager, known as “Miss D,” sought to end her pregnancy because at 18 weeks fetal brain development was fatally defective. If born, the baby would not survive more than a few days. Miss D is in the care of a state agency which had alerted law enforcement and passport officials to stop her from leaving the country during her pregnancy.  

Abortion is illegal in Ireland except when the continuation of pregnancy poses a real and substantial risk to a pregnant woman's life. A constitutional amendment enacted in 1983 provides an equal right to life to the “unborn” and to the pregnant woman. In practice, England serves as a safety valve by providing safe, legal abortion for more than 5,500 women from Ireland each year.  

Separate teams of lawyers represented Miss D, the State, the “unborn,” D’s mother and even her grandmother. The teams combed over her medical records, questioned whether she was suicidal, and debated for days about the state’s right to limit her travel. After more than five days of hearings, the High Court ultimately ruled that the state could not interfere with Miss D’s travel.  The Court avoided answering whether she had a right to an abortion in her own country.

Disturbingly, this appears to be part of a trend worldwide in which individual women with crisis pregnancies must go to court rather than to their doctors to protect their health.

Last year the European Court of Human Rights considered the case of another Irish woman who had traveled to England to terminate a pregnancy after a diagnosis of a fatal fetal anomaly of twins, one of which had already died in utero. The European Court declined to address whether Ireland’s abortion ban violated this woman’s rights under the European Convention on Human Rights. The Court dismissed her case on technical grounds, insisting that in order to vindicate her rights domestically she should have gone to court and urged a change in Irish constitutional law, all while the clock ran on her pregnancy. Not surprisingly she had chosen to travel abroad instead.

The courtroom is an improper place for a woman in a crisis situation and often claims are brought only after a woman has suffered harm. Last year, for example, the United Nations Human Rights Committee recognized that a 17 year old Peruvian girl had been subjected to cruel and degrading treatment when she was forced to carry a fatally impaired fetus to term and then breastfeed the infant until its death four days later. This year, in Tysiac v. Poland, a Polish woman was awarded damages by the European Court of Human Rights after being denied access to an abortion despite the risk to her eyesight from continuing pregnancy. She subsequently became legally blind and unable to care for her four children. In both instances the courts’ rulings were based on the government’s failure to provide clear regulations in advance and facilitate the women’s access to necessary abortion services. 

Such stories of individual women seeking abortions demonstrate why the abortion decision is made best by women, and not by judges or politicians. They vividly exemplify the need to ensure that abortion is legal and available for women worldwide before the moment when immediate abortion services are needed to preserve a woman’s health. 

Adding insult to injury is that women are forced to go to court even when seeking to abort a fetus that has not reached the point of viability. The U.S. Supreme Court was not concerned whether the “partial birth abortion” ban applied to a non-viable fetus. Likewise, in Ireland the lawyer appointed to represent Miss D’s fatally ill fetus asserted that fetal viability was irrelevant, arguing that the court should disregard the quality or duration of the life of the fetus. It is shocking when abortion opponents, including judges, are willing to prioritize a non-viable or a dying fetus above a woman’s health and well-being. 

The Supreme Court acknowledges that the abortion ban it approved will not stop a woman from obtaining an abortion. The ban needlessly puts a woman’s health at risk by forcing her to either undergo a riskier alternative procedure or spend days in court arguing her case. Where is the state’s interest in that?