Ruth Bader Ginsburg

“ The law saves not a single fetus from destruction, for it targets only a method of performing abortion. See Stenberg, 530 U.S., at 930. And surely the statute was not designed to protect the lives or health of pregnant women. ”

“ We have thus ruled that a State must avoid subjecting women to health risks not only where the pregnancy itself creates danger, but also where state regulation forces women to resort to less safe methods of abortion. ”

“ B In cases on a "woman's liberty to determine whether to [continue] her pregnancy," this Court has identified viability as a critical consideration. See Casey, 505 U.S., at 869–870 (plurality opinion) . " [T] here is no line [more workable] than viability," the Court explained in Casey, for viability is "the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman.... ”

“ It makes no sense to conclude that this facial challenge fails because respondents have not shown that a health exception is necessary for a large fraction of second-trimester abortions, including those for which a health exception is unnecessary: The very purpose of a health exception is to protect women in exceptional cases.
B If there is anything at all redemptive to be said of today's opinion, it is that the Court is not willing to foreclose entirely a constitutional challenge to the Act. ”

“ Nor does the Court explain why the injunctions ordered by the District Courts should not remain in place, trimmed only to exclude instances in which another procedure would safeguard a woman's health at least equally well. Surely the Court cannot mean that no suit may be brought until a woman's health is immediately jeopardized by the ban on intact D&E. A woman "suffer [ing] from medical complications," ante, at 168, needs access to the medical procedure at once and cannot wait for the judicial process to unfold. ”

“ Rather, a provision restricting access to abortion "must be judged by reference to those [women] for whom it is an actual rather than an irrelevant restriction." Ibid. Thus the absence of a health exception burdens all women for whom it is relevant--women who, in the judgment of their doctors, require an intact D&E because other procedures would place their health at risk. ”

“ H. Boonstra, R. Gold, C. Richards, & L. Finer, Abortion in Women's Lives 13, and fig. 2.2 (2006) ("as late as 1965, illegal abortion still accounted for an estimated...17% of all officially reported pregnancy-related deaths"; " [d] eaths from abortion declined dramatically after legalization") .↑ . There is, in short, no fraction because the numerator and denominator are the same: The health exception reaches only those cases where a woman's health is at risk. Perhaps for this reason, in mandating safeguards for women's health, we have never before invoked the "large fraction" test. ”

“ Danforth, 428 U.S. 52, 79 (1976) (holding unconstitutional a ban on a method of abortion that "force [d] a woman...to terminate her pregnancy by methods more dangerous to her health") . See also Stenberg, 530 U.S., at 931 (" [Our cases] make clear that a risk to...women's health is the same whether it happens to arise from regulating a particular method of abortion, or from barring abortion entirely.") . Indeed, we have applied the rule that abortion regulation must safeguard a woman’s health to the particular procedure at issue here--intact dilation and evacuation (intact D&E) . ”

“ The majority contends that " [i] f the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure." Ante, at 164. But a "significant body of medical opinion believes that inducing fetal death by injection is almost always inappropriate to the preservation of the health of women undergoing abortion because it poses tangible risk and provides no benefit to the woman." ”

“ State, 16 Wall. 130, 141 (1873) (Bradley, J., concurring) ("Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.... The paramount destiny and mission of woman are to fulfil [l] the noble and benign offices of wife and mother.") ”

“ Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from " [s] evere depression and loss of esteem." Ante, at 159. [7] Because of women's fragile emotional state and because of the "bond of love the mother has for her child," the Court worries, doctors may withhold information about the nature of the intact D&E procedure. ”

“ Those views, this Court made clear in Casey, "are no longer consistent with our understanding of the family, the individual, or the Constitution." 505 U.S., at 897. Women, it is now acknowledged, have the talent, capacity, and right "to participate equally in the economic and social life of the Nation." Id., at 856. Their ability to realize their full potential, the Court recognized, is intimately connected to "their ability to control their reproductive lives." Ibid. Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy ”

“ Today, the Court blurs that line, maintaining that " [t] he Act [legitimately] appl [ies] both previability and postviability because...a fetus is a living organism while within the womb, whether or not it is viable outside the womb." Ante, at 147. Instead of drawing the line at viability, the Court refers to Congress' purpose to differentiate "abortion and infanticide" based not on whether a fetus can survive outside the womb, but on where a fetus is anatomically located when a particular medical procedure is performed. See ante, at 158 (quoting Congressional Findings ¶ (14) (G) ) . ”

“ Yet, the availability of those procedures--along with D&E by dismemberment--the Court says, saves the ban on intact D&E from a declaration of unconstitutionality. Ante, at 164–165. Never mind that the procedures deemed acceptable might put a woman's health at greater risk. See supra, at 180, and n. 6; cf. ante, at 136, 161–162.
Ultimately, the Court admits that "moral concerns" are at work, concerns that could yield prohibitions on any abortion. ”

“ According to the expert testimony plaintiffs introduced, the safety advantages of intact D&E are marked for women with certain medical conditions, for example, uterine scarring, bleeding disorders, heart disease, or compromised immune systems. ”

“ The Court's hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label "abortion doctor." Ante, at 144, 154, 155, 161, 163. A fetus is described as an "unborn child," and as a "baby," ante, at 134, 138; second-trimester, previability abortions are referred to as "late-term," ante, at 156 ”

“ Intact D&E, plaintiffs' experts explained, provides safety benefits over D&E by dismemberment for several reasons: First, intact D&E minimizes the number of times a physician must insert instruments through the cervix and into the uterus, and thereby reduces the risk of trauma to, and perforation of, the cervix and uterus--the most serious complication associated with nonintact D&E. See Carhart, 331 F. Supp. 2d, at 923–928, 1025; National Abortion Federation, 330 F. Supp. ”