Today's Seattle Times editorial on the recent partial-birth abortion decision by the Supreme Court is a case study on the travails of being imprecise in describing intricate and divisive issues.
The Times says, "The most troubling part of the ruling is the notion that courts know better than doctors how to proceed."
No, the court ruled on the Constitutionality of a law passed by Congress. It wasn't writing an instruction book for the American Medical Association.
Moreover, Justice Kennedy, writing for the majority, explicitly did not overrule most recent precedent on the topic of partial birth abortions, Stenberg v. Carhart. This the same Kennedy who joined former Justice O'Connor and Justice Souter in affirming Roe. V. Wade in Planned Parenthood v. Casey. He is no anti-Roe zealot. He simply concluded legislative bodies do have the right to prohibit certain forms of abortion under its "legitimate and substantial interest in preserving and promoting fetal life." Notably that in which the child will live if birthed at the time of abortion.
The bigger picture of what the Times appears to subtly dread comes down to the position commonly ascribed to pro-lifers, that there is no "right" to abortion in the Constitution. Yet, assemblages of fervently pro-choice legal scholars acknowledging as much make for interesting reading. Good people on both sides of the abortion question can agree Roe is bad Constitutional law (though many on the pro-choice side will still disagree violently). Thus, there is a very reasonable argument this issue should have been left to the people, through their elected representatives, from the beginning.
Of course, many on the pro-choice side leap to the conclusion that if Roe were overturned, abortion would ipso facto become illegal. Regrettably for advocates equally passionate on the pro-life side, that isn't likely. Even the full reversal of Roe, if that ever were to happen, would simply return the issue to the jurisdiction of the states. Based on modern trends in the political composition of many states, particularly the more populous, it would seem the functional status quo of abortion law wouldn't change much for most of the country. If South Dakota can't pass a ban on most abortions then state-by-state battles might not be nearly as anti-abortion as pro-choice advocates, such as the Times, seem to fear.
As the Times itself discusses, Washington state is firmly pro-choice. Nonetheless, the editorial page fears the worst: "If this court can go along with this, it can glide rather effortlessly into abolishing second-trimester abortion."
Call me a literalist, but there is a monumental policy difference between a ban on a rarely used method of abortion in the third trimester versus a total ban in the second. It's these sort of hyperbolic leaps of logic that substantively weaken the Times' argument, though which are not uncommon from some pro-choice pundits, including locally, in the wake of the Court's ruling.
Lord knows abortion will remain a controversial topic in this country, regardless of how Roe fares in future years. Either way, it would help make the debate more clear-headed if passionate advocates could speak to the facts rather than project their fears.
Posted by Eric Earling at April 25, 2007 07:40 PM | Email ThisI am not a medical doctor and I know this comment will ignite a firestorm. The point of the procedure is to kill the baby, not have it born alive. Sarah Weddington and others that argued Roe v. Wade, in my opinion, were clever in couching the debate in terms of women's rights and the issue of whether a human life was being taken was allowed to be a secondary issue because the science at the time of Roe in terms of viability was not that precise. If the argument was couched in terms of is there a life and whether or not the procedure is murder, that is a different argument. There are arguments for legal murder, mercy killing, and euthanasia, but that is a different argument from saying that the rights of the woman always take precedence.
I have my fire suit on and expect to now get torched.
Posted by: WVH on April 25, 2007 09:10 PMThe name the anti-choice movement hung on the procedure does not accurately describe it, and thus good folks like yourself are legitimately confused.
Why not remove the fetal material via C-section? One word, Mike: Sepsis.
Removal of a dead or dying fetus via a huge gaping hole in the mother's abdomen would expose the mother to infection, illness, and possible death. Removal via the normal birth route involves limited invasive procedures (although it is much more painful for the mother due to the dialation process), and preserves the mother's life, frequently so that her already existing children are not left motherless.
Posted by: Voter on April 25, 2007 09:17 PMOne question, are you an MD? I, like many on both sides of this issue have seen the movie(s) regarding this procedure and heard from MDs. I am not an MD, but the presentation I went to, indicates that what you are saying may not be the case. Again, I am not a doctor and am relying on the statements of MDs.
You have hit on the key issue which is viability. The question is whether the procedure involves a viable human life?
Posted by: WVH on April 25, 2007 09:28 PMYou've made an assertion without absolutely ANY proof to back it. You need to factually back up that nonsense, particularly given the risk of "sepsis" is no more of a problem for the even rarer "dead or dying child" delivered through C-section then it isd for a live child... and, as we all know, c-sections are now the birth process of choice for precisely those reasons: everything from a reduced risk of HIV transmission to lower instances of infection.
SO, please, please, PLEASE do better then what you've posted so far.
Posted by: Hinton on April 25, 2007 09:30 PMMy oath is to do no harm. I find it ironic that liberal groups such as PETA are concerned about food animals being slaughtered without pain killers yet they have no problem doing a very similar procedure on a human being.
What kind of sick society is it that produces videos of slaughter houses elevating food animals to sentient being status and reducing human young to nothing but a clump of cells?
Posted by: MD on April 25, 2007 10:12 PMHowever, no majority was created as such, so Casey v. Planned Parenthood ended up creating a very fragile constitutional law that makes it much more easy to chip away at many of the pro-abortion laws. Their 'holding' or the essential aspects of Roe basically was just the 5 trying to keep legal some abortion and the only way they could do that in the framework of Casey was to strongly word the part of the opinion where the court should defer to previous actions of the court especially in cases where they knew they would be making the wrong decision but they felt for political purposes they needed to make that ruling ----- basically the court said Roe was bad constitutional law but they weren't going to change it due to politics at that moment but would make it easier to in the future.
Posted by: Doug on April 25, 2007 10:28 PMI don't know how many private insurers currently pay for this procedure, but I suppose there are a couple of reasons for this disscussion:
a. if an insurer currently pays, will they
now consider not paying.
b. Will groups on the local level now move
to change state laws allowing this procedure.
The editorial stated that it views the decision as a slippery slope.
The ban that was upheld was not about funding. It was about banning the procedure altogether. However under the current jurisprudence, which as Justice Thomas and Scalia noted in the separate opinion: has "no basis in the Constitution", abortion is still legal until birth. This bans a particular method of abortion, but will not prevent a single baby from being aborted, if the mother "chooses".
Posted by: Michelle on April 26, 2007 12:09 AMI have have many discussions with women who are pro-choice because women should have a right over their bodies. But, they then say no way, no how should they or anyone in their immediate family have an abortion. I am struggling with that one.
I am pro-choice for the baby myself. Maybe the baby needs a guardian ad litum upon conception or at some point the government says it is a human.
The pictures and movements I have seen at 3 months is way too late to dispute that it is a human person.
Posted by: swatter on April 26, 2007 08:46 AMOne thing I must point out, though, is that South Dakota narrowly rejected that abortion ban after the pro-life campaign was outspent by about 94:1. The Abortion Industrial Complex is loaded with cash, but if they had to fight battles like that all over the place, I suspect we'd quickly bleed them dry, much to the dismay of Nancy Pelosi & Friends. You're right, Washington and a number of others are militantly pro-abortion, and would remain that way, but don't underestimate the number of states whose people would choose otherwise.
Posted by: TB on April 26, 2007 08:58 AMI think the elite here is militantly pro-abortion.
But, get outside the salons where syrah is being served and I think more people are willing to listen. I, at one time, was in favor of a woman's right to choose in all circumstances. What tipped it for me is some of the excellent movies on the subject of abortion and some of the MDs who explain in simple terms what procedures are involved. For me, the question is the viabliity of human life. If a life is viable, then we really are looking at homicide or murder and that is a different argument. There are some legal arguments for categories of legal homicide or murder, but that is a different argument than posed by the abortion lobby. I think there should be exceptions for rape or incest, if that is what the woman chooses. The hard question for people of faith is the support of women and children who do not choose this option. Many in the evangelical community are familar with the great work of James Robison and his wife Betty on international relief. He was the product of a rape and his mother chose to keep him. Framing the discussion in terms of viable life is a different discussion.
We're in the same boat, both having once been on the other side of the debate, and having seen the light. There are a number of ways that transformation can be brought about, but most voters in this state are unlikely to experience it in at least the next decade or so, so I must unfortunately stick to my position about Washington solidly supporting abortion in most of its forms for the forseeable future. It doesn't mean we shouldn't work on them though, because the farther into the future you go, the more hope there is. Truth has a way of winning out in the long run.
Posted by: TB on April 26, 2007 12:09 PMThe fact that WVH has had a change of heart/mind like so many others, including the exreme case of Dr. Bernard Nathanson, co-founder of NARAL and former abortionist, demonstrates the fallacy that anyone (or any state) is beyond hope. It demonstrates instead, the need to continue having the debate and continue educating people on the issue. And as TB points out, when an effort to pass a law like the law in SD fails narrowly (and I know some will dispute that), the last thing pro-lifers should do is give up or compromise. The best thing to do is to keep on going for the gold, restoring the Unalienable Right to Life from conception to natural death.
Posted by: Michelle on April 26, 2007 12:10 PMShe said the info that she was given was poor and resulted in a poor decision. If only these doctors could be forced into giving all the info out there.
Posted by: swatter on April 26, 2007 02:31 PMWhich brings me to the claim: "If this court can go along with this, it can glide rather effortlessly into abolishing second-trimester abortion." WHAT?! Roe and Casey themselves say that this is possible. As long as second-trimester abortion (well, after viability) is not abolished in such a way that a woman's life or health is endangered, according to Roe v. Wade, Congress can do it.
Read that again: Roe v. Wade, and every precedent since, explicitly state that Congress has the right to abolish abortion after viability, as long as the life and health of the mother are protected.
The Court would never do that, of course. But it is bound by Roe itself to find Constitutional a law that does so, as long as it protects the life and health of the mother.
This particular decision merely concluded that this procedure does not pose such a life or health risk, and as such, is not an undue burden, and as such, is perfectly in line with precedent set in both Roe and Casey.
It did not strike a blow to Roe; in fact, it reaffirmed Roe. And it probably won't stop any abortions, since it does not restrict other procedures which can accomplish the same thing.
And in the only portion of the ruling that explicitly went after Roe -- the concurring opinion by Thomas -- only Scalia joined in.
This ruling did show that Alito and Roberts are not pro-abortion-rights zealots, who irrationally perceive any restriction on abortion as unconstitutional (that's not to say that only such zealots could agree with Ginsburg's dissent, but that if they were such zealots, they would have agreed). That they did not join Thomas' concurring opinion is no signal that they did not agree with it, though, as they likely want to not give such an opinion unless they have to.
So this decision means very little. You could agree with Ginsburg that the procedure is sometimes necessary to protect the health of the mother, but not even the doctors can agree on that. You could agree that where there is uncertainty, that Congress must err on the side of the mother's health. The only real meaning in this decision is precisely that: what the evidentiary standard is for whether health is protected. Which is pretty boring for most people.
Contrary to the idiots at the Times who wrote that the Court was substituting its judgment for doctors, it was the Congress who arguably did that. The Court merely said that it is the right of Congress to do that, in the absence of clear scientific or medical evidence one way or another.
Check out this line:
Justice Anthony Kennedy, speaking for the court, had some chilling things to say, particularly that the court "may use its voice and its regulatory authority" to dissuade women from ending pregnancies.
Well no, he didn't say that. He said the GOVERNMENT, not the court, may use its voice and its regulatory authority.
But more importantly, what's wrong with the government doing that? Roe v. Wade itself said, "... [T]he State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion ... ."
Proscribe means, of course, to ban. In case anyone thought it said "prescribe." Of course, there were caveats in there, but so too were there in Kennedy's opinion. My point is simply that Roe specifically said that, in Kennedy's words, the government "may use its voice and its regulatory authority" to dissuade women from ending pregnancies.
So according to the Seattle Times, Roe was "chilling."
Christine M. Flowers | WHO ARE THE 'EXTREMISTS' NOW?
"....THERE ARE two problems with Justice Ginsburg's position. First, the ban that the majority upheld includes exceptions where the mother's life is in danger. There is also ample evidence that intact D&E is never necessary to preserve a woman's health. So safety's a red herring.
And while the sole female justice can be forgiven if she feels more keenly the burden imposed by "ancient notions," her refusal to recognize the barbarity of the procedure and the fact that the ban affects a very narrow group of people highlights the Achilles heel of the pro-choice movement.
For the activists, it's all or nothing. Hillary Clinton can talk about making abortion safe, legal and rare, but the apoplectic responses to the decision show that many pro-choicers don't care if it's rare. They want to make sure it's safe, legal and available - even when medically unnecessary. All because, as Justice Ginsburg implies, it is only a woman's decision.
And that's why what happened last week is so important. The scope of the decision is extremely limited. Roe is still standing, and women are still unfettered in their ability to have abortions during the first trimester, when more than 90 percent are performed. In fact, doctors can still dismember babies in the womb. They just can't crush their tiny skulls.
But the insistence on having access to such a gruesome, unnecessary medical procedure points out how out-of-touch the pro-choice movement has become...."
http://www.philly.com/dailynews/opinion/20070427_Christine_M__Flowers___WHO_ARE_THE_EXTREMISTS_NOW_.html
You have hit the central legal issue from Roe:
"According to the Roe decision, most laws against abortion violated a constitutional right to privacy under the Due Process Clause of the Fourteenth Amendment. The decision overturned all state and federal laws outlawing or restricting abortion that were inconsistent with its holdings. Roe is one of the most controversial and politically significant cases in U.S. Supreme Court history. Its lesser-known companion case, Doe v. Bolton, was decided at the same time.[2]
The central holding of Roe v. Wade was that abortions are permissible for any reason a woman chooses, up until the "point at which the fetus becomes 'viable,' that is, potentially able to live outside the mother's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."
http://en.wikipedia.org/wiki/Roe_v._Wade
The question is whether this "right of privacy"
trumps the rights of a viable life. The discussion of murder which is defined generally by the states, there are a few federal crimes with the death penalty, will come to the forefront as science makes viable life at earlier and earlier stages. Many commentators have said that Roe was bad law and reached for the result of allowing abortion. Some strict constructionists take the view that this right of privacy as defined by Roe does not exist in so far as the right to an abortion. Given modern expectations, most are not willing to totally eliminate a right to privacy in sexual matters.