Though a woman’s right to obtain an abortion was established first in 1973 with Roe v. Wade and with subsequent rulings in the years since, that right is hotly contested time and time again. Each time, the Supreme Court is given the opportunity to overturn Roe. Each time, it cowardly skirts the issue, instead finding some other problem with the law, invalidating it by technicality.

Last week the court was presented with yet another opportunity, this time in the form of a federal – rather than state – statute. The case, Gonzales v. Carhart, is on the docket for the next term beginning in October.

Carhart is an appeal in response to three circuit court injunctions prohibiting enforcement of the Partial-Birth Abortion Ban Act of 2003. The law defines partial-birth abortion as “”an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.””

The courts found the law unconstitutional under the premise that it did not follow the 2000 precedent that abortion bans had to include exceptions to protect the health and prevent the death of the mother.

But that raises the question of whether a health exception is necessary. Is partial-birth abortion really a procedure that would be used – or should be used – if merely the mother’s health is at risk?

The answer is a resounding no. In the text of the statute, Congress reasoned that the nature of the partial-birth procedure indicated that it was not needed for health reasons, only in the case of imminent death.

When drafting the law, legislators included a statement saying “”partial-birth abortion is never medically indicated to preserve the health of the mother”” and that “”there is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures.”” In addition, partial-birth abortion is used late in pregnancy, when the viability of the fetus outside the mother’s womb is more certain.

Since Roe v. Wade in 1973, the holding of the court has been that there cannot be an “”undue burden”” placed on the mother’s ability to obtain an abortion. This ruling has led to the exclusion of spousal and parental consent and in some cases pre-abortion counseling from many state laws. The court has, however, allowed waiting periods for abortions.

However, these cases were decided by a Supreme Court with a different makeup, one that included the late Chief Justice William Rehnquist and retired Justice Sandra Day O’Connor. Without these two – and with the presence of their replacements, Chief Justice John Roberts Jr. and Justice Samuel Alito – the outcome could be vastly different.

In most abortion cases, O’Connor cast the deciding swing vote. With her gone and Alito in her place, he could hold the case in his hands. Abortion rights in general could be eliminated, or at least the door would be left open, if Alito joins the previously dissenting Scalia, Thomas and Kennedy, and if Roberts adheres to the dissenting vote of his mentor, Rehnquist.

And that is a step in the right direction. Abortion, though seemingly a right of a mother, is not a right protected by the Constitution.

No one with a conscience can argue that partial-birth abortion is anything but a heinous act. In 1995, the Los Angeles Times printed an article about the procedure when the first federal Partial-Birth Abortion Ban Act was passed.

It was described as a procedure in which “”a physician (extracts) a fetus, feet first, from the womb and through the birth canal until all but its head is exposed. Then the tips of surgical scissors are thrust into the base of the fetus’ skull, and a suction catheter is inserted through the opening and the brain is removed.””

With descriptions like that, how can one honestly argue that this procedure is acceptable? American values would dictate to the contrary. But apparently, adding “”abortion”” to the end of something turns murder into “”female liberation.””

With the confirmation of Alito – a man many accuse of being another Scalia – to the bench, it is possible that abortion rights will take a drastic turn. Gonzales v. Carhart could prove to be the case needed to get the ball rolling in an exercise Justice Scalia described in Planned Parenthood of Southeastern Pennsylvania vs. Casey as disassembling Roe “”doorjamb by doorjamb.””

One can only hope that will be the case.

Janne Perona is a criminal justice administration sophomore.
She can be reached atletters@wildcat.arizona.edu.