La Corte Suprema e il diritto di abortire

Intervento magistrale del buon George J. Annas su Abortion Rights e Partial-Birth Abortion: The Supreme Court and Abortion Rights, New England Journal of Medicine, 2 maggio 2007. Riporto la discussione; da leggere tutto.

The major change in the law this opinion brings with it is the new willingness of Congress and the Court to disregard the health of pregnant women and the medical judgment of their physicians. This departure from precedent was made possible by categorizing physicians as unprincipled “abortion doctors” and infantilizing pregnant women as incapable of making serious decisions about their lives and health. The majority opinion ignores or marginalizes long-standing principles of constitutional law, substituting the personal morality of Justice Kennedy and four of his colleagues.

The majority asserts that giving Congress constitutional authority to regulate medical practice is not new but identifies no case in which Congress had ever outlawed a medical procedure. Its reliance on the more than 100-year-old case of Jacobson v. Massachusetts is especially inapt. Jacobson was about mandatory smallpox vaccination during an epidemic. The statute had an exception for “children who present a certificate, signed by a registered physician, that they are unfit subjects for vaccination,” and the Court implied that a similar medical exception would be constitutionally required for adults. It is not just abortion regulations that have had a health exception for physicians and their patients — all health regulations have.

On the other hand, those who expect Roe to be overturned by this Court may be disappointed. Although Justice Alito has replaced Justice O’Connor and is likely to vote in the opposite direction on Roe-related issues, Justice Kennedy is the new swing vote on the Court, and he insists that he is upholding the principles of Roe v. Wade as reaffirmed in Casey. Just as the question of whether a specific abortion regulation was an “undue burden” was once a determination Justice O’Connor could effectively make for the Court, the meaning of Roe v. Wade is, at least for now, up to Justice Kennedy.