Bigger Than Abortion

The decision announced by the US Supreme Court on Wednesday to uphold federal legislation that bans "intact dilation and evacuation" method abortions is not really about abortions.

Well, the decision is about abortions, and it will certainly impact future legislation (first article below). Though, given the current political environment, especially on the state level, it's impossible to predict how.

But this ruling is bigger than abortion. It's about freedom. If what you mean by "freedom" is the ability to make independent, individual choices, even if sometimes those choices are destructive to you and, arguably, others.

I aim to parse through the opinion itself, and most definitely its dissenting opinion (p 49), by the end of the day. I'll get back to you with a full analysis of the horror later.

(Fuck that Gonzales guy, like we should be surprised by now that the Bush administration has found a lame duck and is lining it up like a midway prize game - dead in the water. And don't get me started on the Republican party - they're lost.)

In the meantime, I'd like to alert you, Dear Readers, to one of the most disturbing things I have ever seen reported in national news.

Here's the quote (the rest of the article is below, 2nd item):

"Most notable was the emphasis in the majority opinion, by Justice Anthony M. Kennedy, on the implication of abortion’s “ethical and moral concerns.”
“The act expresses respect for the dignity of human life,” Justice Kennedy said."

I have a response to that, Justice Kennedy. A few responses, actually:

1. A court of law is NOT the place to decide the ethical and moral concerns of anything.

2. Whose life are we dignifying? Cause it sure ain't the future mothers of these unborn children.

3. If it's about morality, it's not about respect. Morality is a control mechanism. It suppresses the autonomy of individual actors by dictating a course of right action. This reflects a lack of respect for the individual, for circumstances, and for freedom (and by "freedom" I mean...).

4. Your job, Justice (ha!) - because you seem to have forgotten - is to decide whether the appellate courts interpreted the law correctly. That's it. No morality required.

And you call yourself a conservative jurist?! You should be ashamed of yourself!

From The New York Times:

(Article 1 of 2)
April 20, 2007
New Push Likely for Restrictions Over Abortions
By KIRK JOHNSON

DENVER, April 19 — Both sides of the abortion debate expect a new push for restrictions as state lawmakers around the country digest the implications of the Supreme Court decision Wednesday upholding a federal ban on a type of abortion.

But such legislation could face headwinds in states where voters in the last election sent large numbers of Democrats — many of them abortion rights advocates — into office for the first time.
Seventeen houses or senates in the states shifted position on abortion after the November elections — 15 toward more abortion rights and 2 toward greater restrictions — according to an analysis by Naral Pro-Choice America. The group says six new governors supporting abortion rights were elected, compared with one who had voiced strong views against abortion.

“Something this drastic is going to energize both sides,” said Katherine Grainger, the director of the state program at the Center for Reproductive Rights, an abortion rights legal advocacy group based in New York. The organization represented some of the doctors involved in the Supreme Court case decided Wednesday.

The reasoning of both the court’s majority opinion upholding the restrictions and the dissent gave encouragement to opponents of abortion. The ruling, they said, will bolster their argument that the issues raised by abortion — among them defining fully informed consent by women who want to end pregnancies and the question of when a fetus feels pain — are legitimate topics for state legislation.

“The case does not give us a new issue, it reinforces the issue and gives us an opportunity to use it,” said Mary S. Balch, the director of for state legislation at the National Right to Life Committee.

Ms. Balch and other legislative experts said that North Dakota, Missouri, Georgia, South Carolina, Texas and Alabama, where legislators are still meeting and anti-abortion legislation is on the table, were probably the places to watch for now.

Only hours after the Supreme Court’s ruling, a lawmaker in Alabama introduced a measure that would ban almost all abortions in the state. Most states have adjourned their legislatures for the year or passed the deadline for introducing new bills.

Some scholars of the abortion debate say that all the tilting and jousting of politics and the technical legal issues raised by the Supreme Court in upholding, by a 5-to-4 vote, the federal Partial-Birth Abortion Act are beside the point.

What the court really did, said Anne Hendershott, a professor of sociology at the University of San Diego, was reframe the debate about how abortion should be discussed.
The court did not talk about big concepts and issues like privacy, but about the small, gripping details of how abortion works, said Professor Hendershott, author of “The Politics of Abortion” (Encounter, 2006).

Focusing on such details, she said, is how so-called “incrementalists” are trying to chip away at the availability of abortion. These opponents try to make women, doctors and other health professionals talk more, in some cases a lot more, about the actual consequences and mechanics of abortion.

With the court’s ruling and the new fuel it gives to the strategy of encouraging those discussions, Professor Hendershott said, the incrementalists have won the debate — if not over abortion, then at least over how to fight it.

“This case changes the conversation,” she said. “The battle between the incrementalists and those who wanted a constitutional amendment was won by the incrementalists.”

Some lawmakers who are backing anti-abortion bills in their states said the ruling helped them by declaring that some specific restrictions are constitutional. The Supreme Court has never before upheld a ban on a specific kind of abortion.

The emphasis in the court’s ruling was also much less on the health or well-being of the pregnant woman, but on the risks and consequences of an abortion to her and her fetus. This makes discussion of an abortion’s potentially negative consequences easier, the lawmakers said.
“It certainly doesn’t hurt,” said James Mills, a Republican state representative from Gainesville, Ga. Mr. Mills is the chief sponsor of a bill in the Legislature that would require doctors to offer patients seeking abortions the choice of viewing an ultrasound image of the fetus.

In South Carolina, lawmakers are also debating a law involving ultrasound. One approach would have required a woman to view the ultrasound image of her fetus before the abortion could be performed. The other says the option must be offered to the woman by her doctor.

State Senator Kevin Bryant, a Republican from Anderson and a sponsor of one of the bills, said abortions of the sort addressed by the Supreme Court were already illegal in South Carolina. But Mr. Bryant said the ruling could provide some momentum to other restrictions.

“We may also look down the road and end up seeing some other procedures that should be restricted too,” he said. “We don’t want to do too much at one time.”

Legislators in North Dakota are looking at legislation that would immediately ban abortion statewide if Roe v. Wade, the 1973 Supreme Court case that made abortion legal, is overturned.
The Mississippi Legislature passed just such a bill earlier this year, banning nearly all abortions if the ruling is overturned. The law was signed Thursday by Gov. Haley Barbour, a Republican.
But some winds are blowing the other way.

In Oklahoma, the Democratic governor, Brad Henry, vetoed legislation Wednesday that would ban state facilities and workers from performing abortions except to save the life of the pregnant woman. Mr. Henry, who has supported some restrictions on abortion in the past, said the bill went too far. Supporters of the bill, which passed overwhelmingly in both houses, hope to override the veto.

Last month, Gov. Dave Freudenthal of Wyoming, a Democrat, vetoed a bill that would have created a new category of homicide if a pregnant woman was murdered and her unborn fetus died. Mr. Freudenthal said in his veto message that he thought the bill was probably unconstitutional.

Gov. Eliot Spitzer of New York, a Democrat, told an abortion rights group Thursday that he would fight to keep abortion legal in his state.

Some opponents of abortion said that, until the Supreme Court’s ruling, this had not been a particularly good year for their cause.

In part this may have been because of the changed composition in state legislatures and in part because of what many politicians saw as a backlash when South Dakota tried to ban most abortions last year. The Legislature passed a sweeping ban, only to see the public repeal it in a statewide referendum.

“This particular legislative session was a tough year for us,” said Ms. Balch of the National Right to Life Committee. “We had some victories, but we would have liked more.”
She said lawmakers in South Dakota seemed to be taking a year off after last year’s defeat. Virginia, often a hotbed of anti-abortion discussion, has been quiet too, she said.
Dan Frosch contributed reporting from Denver.


(Article 2)
April 19, 2007
Justices Back Ban on Method of Abortion
By LINDA GREENHOUSE

WASHINGTON, April 18 — The Supreme Court reversed course on abortion on Wednesday, upholding the federal Partial-Birth Abortion Ban Act in a 5-to-4 decision that promises to reframe the abortion debate and define the young Roberts court.

The most important vote was that of the newest justice, Samuel A. Alito Jr. In another 5-to-4 decision seven years ago, his predecessor, Justice Sandra Day O’Connor, voted to strike down a similar state law. Justice Alito’s vote to uphold the federal law made the difference in the outcome announced Wednesday.

The decision, the first in which the court has upheld a ban on a specific method of abortion, means that doctors who perform the prohibited procedure may face criminal prosecution, fines and up to two years in prison. The federal law, enacted in 2003, had been blocked from taking effect by the lower court rulings that the Supreme Court overturned.

The banned procedure, known medically as “intact dilation and extraction,” involves removing the fetus in an intact condition rather than dismembering it in the uterus. Both methods are used to terminate pregnancies beginning at about 12 weeks, after the fetus has grown too big to be removed by the suction method commonly used in the first trimester, when 85 percent to 90 percent of all abortions take place.

While the ruling will thus have a direct impact on only a relatively small subset of abortion practice, the decision has broader implications for abortion regulations generally, indicating a change in the court’s balancing of the various interests involved in the abortion debate.
Most notable was the emphasis in the majority opinion, by Justice Anthony M. Kennedy, on the implication of abortion’s “ethical and moral concerns.”

“The act expresses respect for the dignity of human life,” Justice Kennedy said.
The decision was a major victory for the Bush administration and its vigorous defense of the law, which President Bill Clinton had vetoed twice before President Bush signed it.

Mr. Bush welcomed the ruling, saying: “The Supreme Court’s decision is an affirmation of the progress we have made over the past six years in protecting human dignity and upholding the sanctity of life. We will continue to work for the day when every child is welcomed in life and protected in law.”

It was also a vindication for the strategic choice the anti-abortion movement made 15 years ago, when the prospect of persuading the Supreme Court to reconsider the right to abortion seemed a distant dream. [Page A23.]

By identifying the intact procedure and giving it the provocative label “partial-birth abortion,” the movement turned the public focus of the abortion debate from the rights of women to the fate of fetuses. In short order, 30 states banned the procedure.

The decision on Wednesday came seven years after the court struck down one of those state laws, from Nebraska. Justice Kennedy was a strong dissenter from that decision. With Justice Alito’s vote, he was in a position this time to write not for the dissenters but for the new majority.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas also voted in the majority. Justices Thomas and Scalia also filed a brief concurring opinion reiterating their opposition to the court’s abortion precedents and expressing their continued desire to overturn them.

Neither Chief Justice Roberts nor Justice Alito signed this statement. There was no way of knowing whether their silence meant they disagreed with it or whether, not having previously expressed their views as Justices Thomas and Scalia had, they had no need at this point to stake their ground.

The court did not explicitly overturn any of its precedents, although Justice Ruth Bader Ginsburg, writing for the four dissenters, said the decision was “so at odds with our jurisprudence” that it “should not have staying power.” Justice Ginsburg called the decision “alarming” and said the majority’s “hostility” to the right to abortion was “not concealed.”
Justices John Paul Stevens, David H. Souter and Stephen G. Breyer signed Justice Ginsburg’s opinion, portions of which she read from the bench at a slow pace that caused every syllable to resonate.

Justice Kennedy took pains to describe the decision as faithful to the court’s earlier rulings, including the one in the Nebraska case. He said that by defining the prohibited procedure more precisely, the federal law avoided the vagueness the court had found in the Nebraska statute and thus did not place doctors at risk of violating it inadvertently.

Congress passed the law in response to the court’s ruling in the Nebraska case, responding specifically to the majority’s insistence in that case that the law must include an exception for circumstances when the banned procedure was necessary for the sake of a pregnant woman’s health. Congress provided an exception only to save a pregnant woman’s life, as Nebraska had, declaring that the procedure was never necessary for a woman’s health.

Justice Kennedy, in addressing the need for the health exception, said on Wednesday that it was acceptable for Congress not to include one because there was “medical uncertainty” over whether the banned procedure was ever necessary for the sake of a woman’s health. He said that pregnant women or their doctors could assert an individual need for a health exception by going to court to challenge the law as it applied to them.

Justice Ginsburg said that this approach was unrealistic and “gravely mistaken.” She said that requiring “piecemeal” litigation “jeopardizes women’s health and places doctors in an untenable position.”

Clarke D. Forsythe, president of Americans United for Life, a leading anti-abortion group, said approvingly that while the court did not technically overturn the Nebraska decision, the new ruling “effectively gutted it.”

Dr. LeRoy H. Carhart, the Nebraska doctor who challenged both the state law in 2000 and the federal law in this case, Gonzales v. Carhart, No. 05-380, said that “those who support this law are trying to outlaw all abortions, one step at a time.”

In his discussion of the court’s precedents, Justice Kennedy went so far as to suggest that the new ruling was in fact compelled by the court’s decision in Planned Parenthood v. Casey, the 1992 case that reaffirmed the basic holding of Roe v. Wade that women have a constitutional right to abortion. Justice Kennedy supported that result and helped write the decision’s unusual joint opinion.

On Wednesday, he said that “whatever one’s views concerning the Casey joint opinion, it is evident a premise central to its conclusion — that the government has a legitimate and substantial interest in preserving and promoting fetal life — would be repudiated were the court now to affirm the judgments of the courts of appeals” that struck down the federal law.

In describing the federal law’s justifications, Justice Kennedy said that banning the procedure was in fact good for women, protecting them against terminating their pregnancies by a method they might not fully understand in advance and would come to regret later.

“Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” he said, adding: “It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.”

Justice Ginsburg objected vehemently that “this way of thinking reflects ancient notions of women’s place in the family and under the Constitution — ideas that have long since been discredited.”

She cited century-old Supreme Court cases that upheld a paternalistic view of women’s place in society and contrasted those with more recent cases, including one she successfully argued to the court in 1977 and one in which she wrote the majority opinion in 1996, that rejected “archaic and overbroad generalizations” and assumptions about women’s inherent dependency.

One law professor, Martin S. Lederman of Georgetown University, commented after reading Justice Ginsburg’s response on this point that Justice Kennedy’s opinion “was an attack on her entire life’s work.”

In her opinion, Justice Ginsburg said the majority had provided only “flimsy and transparent justifications” for upholding the law, which she noted “saves not a single fetus from destruction” by banning a single method of abortion. “One wonders how long a line that saves no fetus from destruction will hold in face of the court’s ‘moral concerns,’ ” she said.