Thursday, April 19, 2007

Gonzales v. Carhart

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It's been hard for me to get past my anger to the point where I can actually write about yesterday's Supreme Court decision to uphold a ban on abortions performed by a medical procedure called intact dilatation and extraction.

Right-wingers, of course, are dancing in the streets at what they joyfully declare to be a "victory for the unborn" (emphasis mine).

The sheer ignorance on display, and the contempt for the health and lives of the born (also known, in more sane venues, as women) that drips from every word and phrase, is profoundly depressing.

Kim Priestap: "If a late term pregnancy was so harmful to the mother's health, then the mother should just deliver the baby and give the baby a chance to survive. But this procedure wasn't really about saving the life of the mother. It was about killing an unwanted baby." [Emphasis mine.]

The mother is just a bottle, see; and if the fetus is harming her health, her doctor should just screw off the top and let the baby drop out. Uh, Kimmy, HELLO? If this type of medical procedure is necessary, it's usually precisely because going through normal labor and delivery would endanger the woman's life. Idiot.

Redstate (on "conservatives" leveraging today's decision to win other victories): "If ever there was a chance to kill earmarks, get clean war funding, kill embryonic stem cell research, stop Universal Helthcare [sic], reform Social Security or any OTHER of the varied initiatives the Conservatives are making SOME modicum of progress is now."

Wow. If that is not an open window into how the right's "reverence for life" works, I don't know what is. Embryos = life. Children who die from routine ailments because their parents don't have health insurance = not life. Fetuses = life. Five hundred thousand dead Iraqis = not life. Thanks for confirming everything we liberals ever thought about the minds and hearts of "conservatives" like you, haystack.

Blue Crab Boulevard: "The ruling only addresses this one technique. Other means of abortion are not impacted in any way."

And, of course, Gaius has a medical degree, and the SCOTUS justices have medical degrees, and Pres. Bush and Congress have medical degrees, to know that "this one technique" and those "other means of abortion" are completely interchangeable and carry equal and identical risks and benefits for any given pregnant woman's health or life.

In fact, they are not, and do not (h/t Maha; emphasis is mine):

The Act purports to ban so-called "partial-birth abortions;" however, "partial-birth abortion" is not a medical term and is not recognized in the field of medicine. The Act defines "partial-birth abortion" in a way that encompasses a variation of dilatation and evacuation (D&E), the most common method of second-trimester abortion, in which the fetus remains intact as it is removed from the woman's uterus. The Act's definition also encompasses some D&E procedures in which the fetus is not removed intact.

Over 95% of induced abortions in the second trimester are performed using the D&E method. The alternatives to D&E in the second trimester are abdominal surgery or induction abortion. Doctors rarely perform an abortion by abdominal surgery because doing so entails far greater risks to the woman. The induction method imposes serious risks to women with certain medical conditions and is entirely contraindicated for others.

The intact variant of D&E offers significant safety advantages over the non-intact method, including a reduced risk of catastrophic hemorrhage and life-threatening infection. These safety advantages are widely recognized by experts in the field of women's health, authoritative medical texts, peer-reviewed studies, and the nation's leading medical schools. ACOG has thus concluded that an intact D&E "may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of the woman, and only the doctor in consultation with the patient, based on the woman's particular circumstances can make that decision." [ACOG Statement of Policy on Abortion (reaffirmed 2004)]

ACOG objects to the 2003 federal ban because it exposes women to serious, unnecessary health risks and does not include any exception to protect women's health. In addition, ACOG objects to the Act's vague and overly broad terms because doctors will be unable to determine whether their actions are prohibited by the Act. As a result, the Act will deter doctors from providing a wide range of procedures used to safely perform induced abortions.

"The term 'partial-birth abortion' was purposely contrived to be inflammatory," said Dr. Laube. "While proponents of this law say that it addresses a particular procedure, it has been specifically written to describe and encompass elements of other procedures used in obstetrics and gynecology."

Yesterday's decision is not just the first time a specific medical procedure has been banned; it's also the first time any abortion-restricting legislation has been upheld in court, despite the lack of a health exception:

... It doesn't matter what the health consequences for her are, as long as she won't die on the operating table, even if the fetus is already brain dead and even if not having access to this technique means that she will have her uterus perforated or her cancer spread more quickly, say. The physicians who use this technique after the ban can face a two-year prison sentence.

Now how are you going to defend those other abortions, the ones which are not medically required, the ones in which the woman will not suffer ill-health consequences, when the Supreme Court has started on this road from the other end, the end where the woman had decided to have the child and where only some serious health concern stopped her from carrying the pregnancy to term?

And from Brilliant at Breakfast:

...Today women whose lives are threatened by pregnancies that can never result in healthy babies were told that even the few hours of life that their damaged babies may have are worth more than their own lives. Indeed, ALL women of childbearing age were told today that their lives have no value when weighed against a terminally ill or damaged fetus.

Melissa McEwan:

If there were ever any question about whether the movement behind this ban is “pro-life” or really just “anti-woman,” consider that carrying a terminally ill fetus to term increases a woman’s chances of placental abruption and uterine rupture; if she can even become pregnant again, future pregnancies carry greater risks for both her and the fetus. (And that’s to say nothing of her psychological well-being.)

Does any of that sound like these “pro-lifers” give a diddly shit about healthy women and healthy babies? Of course not. Because it’s not about healthy women and healthy babies; it’s about control.

Ruth Bader Ginsburg, in her scathing dissent, points out that her colleagues' decision to uphold the ban on intact dilatation and extraction abortions is not even about protecting the life of the fetus:

Today’s ruling, the Court declares, advances “a premise central to [Casey’s] conclusion”—i.e.,the Government’s “legitimate and substantial interest in preserving and promoting fetal life.” Ante, at 14. See also ante, at 15 (“[W]e must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child.”). But the Act scarcely furthers that interest: The law saves not a single fetus from destruction, for it targets only a method of performing abortion. See Stenberg, 530 U. S., at 930. And surely the statute was not designed to protect the lives or health of pregnant women. Id., at 951 (Ginsburg, J., concurring);cf. Casey, 505 U. S., at 846 (recognizing along with the State’s legitimate interest in the life of the fetus, its “legitimate interes[t] … in protecting the health of the woman” (emphasis added)). In short, the Court upholds a law that, while doing nothing to “preserv[e] … fetal life,” ante, at 14, bars a woman from choosing intact D&E although her doctor “reasonably believes [that procedure] will best protect [her].” Stenberg, 530 U. S., at 946 (Stevens, J., concurring).

As another reason for upholding the ban, the Court emphasizes that the Act does not proscribe the nonintact D&E procedure. See ante, at 34. But why not, one might ask. Nonintact D&E could equally be characterized as “brutal,” ante, at 26, involving as it does “tear[ing] [a fetus] apart” and “ripp[ing] off” its limbs, ante, at 4, 6. “[T]he notion that either of these two equally gruesome procedures … is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational.” Stenberg, 530 U. S., at 946–947 (Stevens, J., concurring).

Ginsburg's dissent gets to the heart of what is truly behind Gonzales v. Carhart:

Ultimately, the Court admits that “moral concerns” are at work, concerns that could yield prohibitions on any abortion. See ante, at28 (“Congress could … conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.”). Notably, the concerns expressed are untethered to any ground genuinely serving the Government’s interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent. See, e.g., Casey, 505 U. S., at 850 (“Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”); Lawrence v. Texas, 539 U. S. 558, 571 (2003) (Though “[f]or many persons [objections to homosexual conduct] are not trivial concerns but profound and deep convictions accepted as ethical and moral principles,” the power of the State may not be used “to enforce these views on the whole society through operation of the criminal law.” (citing Casey, 505 U. S., at 850)).

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Ante, at 29.7 Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. Ante, at 28–29.8 The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.9

This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited. Compare, e.g., Muller v. Oregon, 208 U. S. 412, 422–423 (1908) (“protective” legislation imposing hours-of-work limitations on women only held permissible in view of women’s “physical structure and a proper discharge of her maternal funct[ion]”); Bradwell v. State, 16Wall. 130, 141 (1873) (Bradley, J., concurring) (“Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. … The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother.”), with United States v. Virginia, 518 U. S. 515 , n. 12 (1996) (State may not rely on “overbroad generalizations” about the “talents, capacities, or preferences” of women; “[s]uch judgments have … impeded … women’s progress toward full citizenship stature throughout our Nation’s history”); Califano v. Goldfarb, 430 U. S. 199, 207 (1977) (gender-based Social Security classification rejected because it rested on “archaic and overbroad generalizations” “such as assumptions as to [women’s] dependency” (internal quotation marks omitted)).

Though today’s majority may regard women’s feelings on the matter as “self-evident,” ante, at 29, this Court has repeatedly confirmed that “[t]he destiny of the woman must be shaped … on her own conception of her spiritual imperatives and her place in society.” Casey, 505 U. S., at 852. See also id., at 877 (plurality opinion) (“[M]eans chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”); supra, at 3–4.

The above complete text of Ginsburg's dissent is via Ann at, by way of Scott Lemieux at Lawyers, Guns, and Money.

Big Tent Democrat skewers Kennedy for his cynical back-door nod to women's health concerns:

Kennedy tries to compromise the issue by saying:

The proper way to make a challenge, if an abortion ban is claimed to harm a woman's right to abortion, is through as as-applied claim, Kennedy wrote. His opinion said that courts could consider such claims "in discrete and well-defined instances" where "a condition has or is likely to occur in which the procedure prohibited by the Act must be used." Kennedy said the Court was assuming that the federal ban would be unconstitutional "if it subjected women to significant health risks." He added, however, that "safe medical options are available." His opinion noted that the Bush Administration "has acknowledged that pre-enforcement, as-applied challenges to the Act can be maintained."

So Kennedy is inviting fact based challenges to the law? And in the meantime, women lose constitutional right to make private decisions with their doctors. Outrageous.

There is more valuable commentary on Gonzales v. Carhart at this edition of Memeorandum. Just be careful picking your way through the right-wing trash.

Cross-posted at Shakesville.

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