Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. . . .  Freedom extends beyond spatial bounds.  Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.

                                           Lawrence v. Texas,

                                           539 U.S. 558, 562 (2003) (Kennedy, J.)

            Last month, the Supreme Court held that Congress had the power to ban a rarely used late term abortion procedure, so long as the regulation contains an exception for medical emergencies where the woman's life may be in jeopardy.

             While I am pro-choice, I do not think that the recent decision is a significant change in existing abortion law.  My sense is that 90 percent of all abortions occur early in a pregnancy, so the late term ban is irrelevant.  But, the decision portends a much broader agenda beyond the abortion debate.  Indeed, what really may be at stake is not abortion, but rather Griswold v. Connecticut's right to privacy.

              For nearly 35 years, the Supreme Court has held that the Due Process Clause of the Fourteenth Amendment protects a woman's right to terminate a pregnancy.  More recently, the Court has held that government may regulate abortions, but may not impose an undue burden on a woman's choice, prior to fetal viability.  Under the new standards, almost all regulations have been sustained, unless it appeared to the Court that the purpose or effect of the regulation was to place an obstacle in the path of the woman's choice.  So far, the Court has only invalidated a spousal notification requirement and a partial birth ban that failed to include a health exception.

              Even though the basic fundamental right to terminate a pregnancy before viability is still protected, Roe v. Wade is not the case it was in 1973.  The trimester framework is gone and the Court no longer applies strict scrutiny, its most rigorous review standard.  The Court has said that after viability the government could proscribe all abortions, except those necessary to protect the life or health of the mother.  It is this late term abortion area that has been styled "partial birth" abortion or "infanticide."  Those labels are loaded and have little to do with the emergencies that may arise late in a pregnancy, or whether in a particular doctor's medical judgment a specific abortion procedure should be used.

             There is a dispute among medical professionals over whether it is safer to use intact or nonintact dilation and extraction for post-viability abortions.  I do not presume to know whether one or another abortion procedure is safer or more gruesome, but I question the general competence of Congress to decide such a question.  Moreover, there is some irony in the fact that the modern, conservative Supreme Court has been loathe to acknowledge Congress' competence to enact many other federal statutes -- to protect women from domestic violence, to keep guns away from schools, or to regulate local cultivation of marijuana for medical use -- but defers to Congress on its abortion procedure ban.

              Both the federal district court and the federal circuit court ruled against Congress, concluding that the Partial Birth Abortion Ban Act was unconstitutional because it placed an undue burden on a woman's right to choose.  The courts also found the statute was vague regarding whether it covered only intact D&E procedures or nonintact D&Es as well.  Finally, the courts held the statute was flawed because it did not contain the required health exception.

              The Supreme Court reversed the lower courts, concluding the statute was neither vague nor overbroad and did not impose an undue burden on the woman's right to terminate a pregnancy.  The Court agreed that Congress could ban intact D&E, so long as there is an exception for maternal life.  The Court read the Act to apply only to one abortion procedure -- intact D&E.

              The result is not really surprising since Justice Kennedy had previously expressed his support for a similar Nebraska ban on the use of that procedure in Sternberg v. Carhart.  With the addition of Chief Justice Roberts and Justice Alito, Kennedy now had five votes to sustain such a ban.

              The Court has likely narrowed Roe and Casey in at least one important respect:  the health exception requirement appears to mean to the majority of the Court that the abortion is necessary to save the woman's life.  What is unclear is who will make this judgment.

              I do not think that Justice Kennedy will rollback the basic fundamental right to terminate a pregnancy.  But it is possible that with one more vote, Justices Scalia, Thomas, Roberts, and Alito could eliminate this fundamental right.

            As I suggested at the outset, I want the government to stay out of my private choices about family, marriage, and my home life.  The right to privacy has provided important safeguards against public animus or discrimination.  As the government and courts grow increasingly invasive, we need privacy rights more than ever.  We need constitutional protection to make some fundamental choices for ourselves.