SCOTUS Decision: Gonzales v. Carhart/Planned Parenthood
Published April 18th, 2007If the media does anything, it’s cover science and law stories poorly. This is no exception.
Today’s decision by the SCOTUS on “partial-birth” (a legislative, not scientific or medical term) is one of the more convoluted and confusing rulings on the issue. Some feel it’s a narrow decision, others feel it’s a broad decision. Even the justices don’t agree - Kennedy feels it’s a narrow decision, open to revisiting in the future, while Ginsburg feels it’s a very sweeping (and particularly troubling) decsion. And of course, making matters worse - they’re probably both right.
Today’s decision upholds a law passed by Congress outlawing a specific abortion procedure (intact dilation and extraction, IDX) performed during the second trimester. It does not address a more commonly used procedure during the second trimester (dilation and evacuation, D&E). Both methods, as medical procedures go, are rather unpleasant. But some medical procedures are simply unpleasant.
The law was upheld 5-4, with the usual suspects on each side. Alito, Scalia, Thomas, Roberts and Kennedy were in the majority, while Ginsburg, Souter, Breyer and Stevens were in the minority. Kennedy was the swing vote here and wrote the majority opinion. His treatment of the issue is very revealing into the strange machinations necessary to support this law.
When Congress was debating this bill, they held hearings to determine if the IDX procedure was ever medically necessary. There was no medical consensus on this issue. The eventual decision by Congress, based on (sometimes questionable) testimony was that the IDX procedure is never both medically necessary and the only possible procedure - the D&E procedure is always a viable alternative. So, they passed the bill outlawing the IDX procedure and away we went. And so things get complicated.
The basic challenge to this law was that it is unconstitutional (ref. Roe v. Wade, Casey, etc) on it’s face - it limits a woman’s right to an abortion. This is the most basic way to state the test that must be applied to abortion laws. Kennedy opines that no, it does not limit a woman’s right to a safe abortion. Because (as per Congress) the IDX procedure is never the only medically safe option, it never prohibits a woman from getting an abortion - the D&E procedure is always available instead. The law is not unconstitutional because it does not limit the fundamental right. He continues on to say that if there was a specific case where a specific woman was denied an abortion because the IDX procedure was her only option, THEN the law is open to challenge.
And here is where gets Ginsburg up in arms. Because the law is based on the Congressional finding that the IDX procedure is never necessary, it pretty much makes it impossible for any person to come forward and prove that the IDX procedure is their only option. So even though the law contains a health exception, it is gutted by the fact that Congress deemed it irrelevant.
Kennedy alludes to this in saying that even though a specific challenge could be entertained, it isn’t possible because the law contains a health exception already - but it doesn’t matter because (as Congress has said) that situation would never arise.
Follow that? Confusing as hell. So Kennedy feels he’s making a narrow judgement here (he is against outlawing abortion entirely) and is comfortable with his decision to uphold this law. Ginsburg, on the other hand, feels that by upholding a law that guts it’s own health exception, the Court is making a very broad and sweeping decision that serves to erode abortion rights. They both have a valid point, I think.
For me - well, I think that upholding this law is wrong. I am a Pro-Choice individual, and more specifically to this case, I feel that a doctor - your own personal doctor - should be the one making the decision (along with you) about what procedure is best for your individual medical needs. Congress and SCOTUS should not be in the business of outlawing valid medical procedures. The IDX procedure is supported as a medically sound and viable procedure by the American College of Obstetricians and Gynecologists - and they’re the ones that should be certifying these things, not Congress, not SCOTUS. Doctors in the field. So for the government to outlaw a valid medical procedure is very disturbing to me - regardless of what it is.
Good commentary can be had at SCOTUSBlog.
Text of the opinions (majority, concurring, dissenting) can be read here.
Ultimately, the problem here is that the SCOTUS got into the business of regulating abortion in the first place. By removing the debate from the domain of legislative politics they basically required they be the final arbiter of any abortion policy.
I’m nominally pro-choice. I see abortion as unfortunately necessary, but barbaric. I think that ultimately, legislation of it (and MANY other health issues) be remanded to local governments (read: the states).
Ultimately the SCOTUS made this mess with Roe v. Wade, and as it unlikely to be overturn the ruling, I suspect that these odd decisions are going to be subject to the political leanings and whims of the justices for a long time to come.
(This article says almost all of it for me, as far as moral/political consequences go. She might be ducking earlier-term abortion banning issues and have a position favoring it. BTW, pregnancy is not really a medical condition, and supply and demand have to do some deciding how the media covers the issues. Anyway, I do hope for a ban on abortion, it’s moral politics like this that make me not only a single-issue voter, but an almost party-line voter. –Mike)
COMMENTARY (Wall Street Journal)
Out of the Mainstream
By KIRSTEN POWERS
May 1, 2007; Page A20
Brian Williams asked a revealing question at the Democratic presidential debate in South Carolina last week. The NBC News anchor, who was serving as moderator, inquired whether criticism of the Supreme Court’s decision to uphold the federal partial-birth abortion ban put the Democrats on stage at odds with the majority of Americans who applauded the decision.
John Edwards, apparently missing the rhetorical nature of the question, responded, “No, I don’t believe it is.”
Polls show between 60% and 70% of Americans oppose late term abortions, except to save the life of the mother. The Democratic candidates — all of whom vocally criticized the ruling — are out of touch with most Americans, including many who are pro-choice, on this important issue. Even some Democrats who voted for the ban four years ago — such as Majority Leader Harry Reid and Sen. Joe Biden (two of 17 Senate Democrats to vote for it) — have dressed down the Supreme Court for upholding a law they voted for.
It’s tragic that abortion rights have become synonymous with modern day feminism. But it’s mind-boggling that late-term abortions now enjoy the imprimatur of every one of the presidential candidates of one of the two main political parties. Many early feminists — the Suffragettes — opposed abortion. They viewed it as an affront to human rights. There is little doubt that they would have recognized elective, late-term abortion for what it is, a gruesome, uncivilized and inhuman procedure.
Feminism was meant to establish women as having equal legal rights to men. Yet, in today’s twisted debate, women are not mere equals. Instead, they have been elevated to a special status where they have the “right” to determine whether a five-month or older “live fetus,” as the court called it, should be partially delivered outside of their body and killed in the most gruesome manner imaginable, even if carrying that fetus poses no threat to their life.
Some elected Democrats ignored this faux-feminist canard, and supported the ban, including Rep. James P. Moran, of Virginia, who said, “It’s not about a woman’s right to choose. It’s about a baby’s right to life.” The late Sen. Daniel Patrick Moynihan, a pro-choice Democrat, called the practice “infanticide.”
It needs to be said that there is no constitutional right to crush a living human’s skull and suction out its brains, no matter where that life may reside — inside the womb, or partially outside the womb, as is done in the so-called partial birth abortion. It’s immoral and contrary to the values of the Democratic Party, which prides itself on standing up for the weak and voiceless.
If Democratic power brokers aren’t swayed by moral arguments, then they should consider how their reflexive pandering to the left wing of the party will play in a general election.
The Democratic Party has made a huge show of reaching out to religious voters, for whom abortion is a central issue. Overtures have been made to acknowledge the moral dimension of abortion, with Sen. Hillary Clinton’s famous remarks that, “we can all recognize that abortion in many ways represents a sad, even tragic choice to many, many women.”
But terrified by the left wing of the Democratic Party, the presidential candidates are aligning themselves with organizations that malign opponents of unrestricted late-term abortions as misinformed hysterics. Yet some of the people who run those organizations are themselves bereft of factual information about the procedure they champion. Recently, National Organization for Women (NOW) President Kim Gandy was asked in a radio interview to describe the procedure she so vigorously supports. She couldn’t. When pressed, she sputtered, “I’m not a doctor.”
When the host cited testimony of a doctor, one Dr. Martin Haskell — the man who pioneered and has performed at least a thousand of these abortions — Mr. Gandy replied “I don’t know who Dr. Haskell is.”
It’s important to know who Dr. Haskell is, since he has debunked a central claim of unrestricted late-term abortion proponents, that they are critical to protect the “health” of the mother. According to an interview in American Medical News, Dr. Haskell said, “I’ll be quite frank: most of my abortions are elective in that 20-24 week range. . . . In my particular case, probably 20% are for genetic reasons. And the other 80% are purely elective.”
Rather than defending the indefensible, rather than parroting the propaganda that elective late-term abortions are “health-care decisions” akin to an appendectomy, the Democratic Party should be taking the lead in eliminating a still legal form of elective late-term abortion where, as the court described it, “The fetus is usually ripped apart as it is removed, and the doctor may take 10 to 15 passes to remove it.”
Sen. Barack Obama pointed out that late- term abortions account for less than 1% of all abortions. Sounds sort of benign, until you consider that in the last 10 years more than 10 million babies have been aborted in the United States.
Ms. Powers served in the Clinton administration from 1993-98 and is a Fox News political analyst.