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Justice Ruth Bader Ginsburg took the unusual step Wednesday of reading, from the bench, a summary of her dissent in the abortion cases Gonzales v. Carhart and Gonzales v. Planned Parenthood . What follows is the text of her remarks from the bench…. Four members of this Court, Justices Stevens, Souter, Breyer and I, strongly dissent from today’s decision. Fifteen years ago, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court declared that “[l]iberty finds no refuge in a jurisprudence of doubt.” There was, the Court said, an “imperative” need to dispel doubt as to “the meaning and reach” of the Court’s 7-to-2 judgment, rendered nearly two decades earlier, in Roe v. Wade. One of the clarifications Casey provided concerned the State’s unconditional obligation to safeguard a woman’s health. At all stages of pregnancy, the Court reconfirmed, state regulation of abortion procedures must protect “the health of the woman.” In reaffirming Roe, the Casey Court described the centrality of “the decision whether to bear . . . a child” to a woman’s “dignity and autonomy,” her “destiny,” her “conception of . . . her place in society.” Challenges to undue restrictions on abortion procedures, the Court comprehended in Casey, do not seek to vindicate some vague or generalized notion of privacy. Rather, they home in on a woman’s autonomy to decide for herself her life’s course, and thus to enjoy equal citizenship stature. In keeping with this understanding of the right to reproductive choice, we have consistently required that laws regulating abortion, at any stage of pregnancy and in all cases, safeguard not only a woman’s existence — her life — but her health as well. Faithful to precedent unbroken from 1973 until today, the Court held seven years ago in Stenberg v. Carhart, that a state statue banning the very procedure at issue today — intact D&E — was unconstitutional in part because it lacked a health exception. If substantial medical authority maintains that banning a particular abortion procedure could endanger women’s health, we held, a health exception cannot be omitted by the legislators. Despite our unambiguous ruling, Congress passed the Partial-Birth Abortion Ban Act — without an exception for women’s health, a ban that would operate nationwide. After lengthy trials and thorough review of volumes of medical evidence, each of the District Courts to consider the statue found that it was unconstitutional for the same reason: Significant medical authority identified intact D&E as the safest procedure for some women. In an alarming decision, the Court today reverses the judgments other federal courts have uniformly made. Today’s decision refuses to take Casey and Stenberg seriously. The Court’s opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman’s health. The Court asserts that its ruling furthers the Government’s interest in “promoting fetal life.” But the Act scarcely furthers that interest, for it targets only a method of abortion. The woman may abort the fetus, so long as her doctor uses another method, one her doctor judges less safe for her. The Court further pretends that its decision protects women. Women might come to regret their physician-counseled choice of an intact D&E and suffer from “[s]evere depression and loss of esteem,” the Court worries. Notably, the solution the Court approves is not to require doctors to inform women adequately of the different procedures they might choose, and the risks each entails. Instead, the Court shields women by denying them any choice in the matter. This way of protecting women recalls ancient notions about women’s place in society and under the Constitution — ideas that have long since been discredited. If there is anything at all redemptive about today’s opinion, it is that the Court is not willing to foreclose entirely a challenge to the constitutionality of the Act. But the “as-applied challenge[s] in discrete case[s]” the Court would allow put women’s health in danger and place doctors in an untenable position. Even if courts were able slowly to carve out health exceptions for “ discrete and well-defined instances” through hard fought, protracted piecemeal litigation, women whose circumstances have not been anticipated by prior litigation could well remain unprotected. In treating those women, physicians would risk criminal prosecution, conviction, and imprisonment if they exercise their best judgment as to the safest medical procedure for their patients. The Court is thus gravely mistaken to conclude that narrow, as-applied challenges are “the proper manner to protect the health of the woman.” As the Court wrote in Casey, “overruling Roe‘s central holding would not only reach an unjustifiable result under principles of stare decisis, it would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.” Although today’s opinion does not go so far as to discard Roe or Casey, the Court — differently composed than it was when we last considered a restrictive abortion regulation — is hardly faithful to Casey‘s invocations of “the rule of law” and the “principles of stare decisis.” In candor, the Partial-Birth Abortion Ban Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women’s lives. A decision of the character the Court makes today should not have staying power.

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