This week has seen a yet another powerful example of the importance of the courts as an issue in the presidential election. Although George W. Bush has been out of office for nearly four years, his anti-choice ideology has been imposed on the women of Ohio due to the federal judges he nominated while president.
A split panel of the Sixth Circuit Court of appeals has denied Planned Parenthood's challenge to an Ohio law that tightly regulates and restricts mifepristone, which allows women to end their pregnancy without surgery. Judges John Rogers and David McKeague, both Bush nominees, ruled that the law does not unconstitutionally burden a woman's right to abortion. Judge Karen Nelson Moore, who was nominated by President Clinton, dissented.
Among the limitations under Ohio's law, doctors are subject to criminal penalties if they prescribe mifepristone more than 49 days after the woman's last menstrual period. As a result, women seeking an abortion beyond that point in their pregnancy would have to undergo surgery. The majority noted that several women had submitted affidavits saying they'd obtained surgical abortions after being denied the medical abortions they had preferred. Therefore, the judges concluded, Ohio's restriction does not constitute an “undue burden” on women:
[T]he Supreme Court has not articulated any rule that would suggest that the right to choose abortion encompasses the right to choose a particular abortion method.
As Judge Moore wrote in dissent:
Just by examining the physical differences between the methods, our common sense tells us that the differences between the procedures from the perspective of the woman are substantial. Surgical abortions, as the name suggests, require surgery, a physically invasive procedure, including sedation and potentially even general anesthesia, and a procedure in the sterile environment of an outpatient clinic. Medical abortions, on the other hand, consist primarily of ingesting pills and terminating the pregnancy in the privacy of the woman's home. Three years ago, almost a third of women chose this second method. We simply should not conclude as a matter of law that every woman who would prefer a medical abortion would be equally likely to obtain a surgical abortion on the basis of nine affidavits.
Presidents serve for four or eight years, but the judges they nominate serve for life. That's something to keep in mind on Election Day.