A recent decision by the Sixth Circuit demonstrates the importance of the role played by Court of Appeals judges. With very few cases reviewed by the Supreme Court, the Courts of Appeals frequently provide the final authority on cases that raise critical issues surrounding women’s health and welfare. For example, in a recent case, Cincinnati Women’s Services v. Taft, the Sixth Circuit reviewed two provisions of an Ohio statute that could be dangerous to women. While the Court did strike down one provision, it upheld the second - using an analysis that spells trouble for women’s reproductive rights.
Under the Supreme Court’s “undue burden” test, states may impose restrictions on a woman’s access to abortion only if they do not create an undue burden, or substantial obstacle, in her path. Instead of focusing on the severity of the burden imposed on an individual woman’s exercise of her right to choose, as courts have traditionally done, the Sixth Circuit required that a restriction, even if extremely burdensome to some women, could be upheld as long as, in its view, not enough women would be harmed.
Using this dangerous rationale which explicitly sanctions government restrictions that clearly harm some women, the court upheld a requirement that women must have an in-person meeting with a physician at least 24 hours before the procedure despite the fact that it was harmful and even life-threatening for some abused women. Those women for whom this law forecloses the option of abortion do not suffer any less because others may still be able to obtain abortions. This case starkly portrays why judges matter, and how those who are hostile to women’s rights can cause great harm to women across the country.
