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Reproductive Rights Advocate Explores Legal Skirmishes Past and Future

February 08, 2012

Thirty-nine years after the Supreme Court decided Roe v. Wade, myths persist about the ruling, said Priscilla Smith, a senior fellow at Yale Law School’s Information Society Project, said during a talk on Feb. 7.

The landmark ruling affirmed a fundamental right to liberty, Smith said, refuting claims that the decision reflected the court’s take on privacy protections enshrouded in the Bill of Rights.

Smith also countered arguments that Roe v. Wade prompted an outcry against judicial activism that sparked an ongoing backlash by political conservatives.

“Roe wasn’t the direct cause and effect,” said Smith, who argued two subsequent abortion-rights cases before the Supreme Court, Ferguson v. City of Charleston (in 2001) and Gonzales v. Carhart (in 2007).

Smith prevailed in 2001, when the court found that the Medical University of South Carolina's policy regarding involuntary drug testing of pregnant women violated their rights under the Fourth Amendment.

She was not successful in Gonzalez v. Carhart, when the court upheld a ban on partial birth abortions.

“It is devastating to lose a Supreme Court case,” Smith said, adding that the majority decision cited the court’s Planned Parenthood v. Casey ruling, which focused on the provision of information to patients to allow informed consent.

Gonzalez was “not an informed consent case,” Smith said.

With some state legislatures moving to require doctors to use specific language to describe the abortion procedure to their patients, Smith predicted that reproductive rights supporters will turn to the First Amendment in future cases.