Wednesday, February 22, 2006

And O'Connor is gone.

The Supreme Court has agreed to take up the issue of a ban on D&X abortion procedures (successfully termed "partial birth abortion" by anti-abortion activists, and now popularized by the mainstream media). I am all for banning them. Really. I think that we should have fewer abortions in general (meaning we should have more sex ed., more access to safe and effective birth control, we should work on poverty issues, day care, make American more child-friendly in general), and I particularly think that the D&X procedure should not be performed willy nilly. And I don't think anyone is arguing that it should. Recent estimated say that it is about two tenths of one percent of all abortions performed in the U.S.

So, what's up with this law? Well, it provides no exception for the health of the mother. Stenberg v. Carhart (2000) maintained that every abortion restriction must contain a health exception that allows an abortion when "necessary, in appropriate medical judgment, for the preservation of the life or health of the mother" or it will create an "undue burden" on the mother.

What is a valid health exception, according to Stenberg v. Carhart:

The health exception must allow the physician to exercise reasonable medical judgment, even where medical opinions differ. The court made clear that the
exception cannot be limited to situations where the health risk is an "absolute
necessity," nor can the law require unanimity of medical opinion as to the need
for a particular abortion method (Stenberg v. Carhart, 2000, at 937).

A physician must be able to invoke the health exception not only when pregnancy itself creates a health risk for the woman, but also when the abortion
restriction would, without such an exception, "force women to use riskier
methods of abortion" (Stenberg v. Carhart, 2000, at 931).

Exactly how big an issue is this, you ask, given that D&X procedures are so rare? If there is no health exception, doctors are going to be very wary of performing any sort of abortion, creating a chilling effect on the right to an abortion. But, even more importantly, I think, is that fact that these health exemptions are not just some wording in a law that scary feminists want just for some abstract principle. These are real people, real women, real mothers. The D&X procedure is sometimes performed when the baby is dead or dying, sometimes posing a risk to the health of the woman. The other alternatives are c-section or vaginal delivery, both of which have considerable physical and psychological risks associated with them. There are stories of women having to carry dead children to term, giving birth to a dead fetus, because doctors refused to perform a D&X (even if the law doesn't forbid it for dead babies [and I'm not sure if this one does or not], there is still a chilling effect and doctors are unwilling to perform it at all for fear of prosecution).

In other cases, the life of the mother is literally at risk; the continuation of their pregnancy would result in things like stroke, paralysis, infertility, or death. Now, you can argue that the life of a baby should always come first (though, really, in many of these cases, the baby would die, too), but that is a personal, moral judgement based on your evaluation and weighing of two lives. Those are decisions for women and families to make. Not the government. You know? I mean, if it comes down to the life of the mother or the child, a mother might absolutely choose the child, but why should the government choose it for her? Or perhaps she has other children and to die (have a stroke, become paralyzed, etc) would endanger those other children as well.

So, how will the court rule? O'Connor is gone. Will they overturn Carhart? If Carhart is controlling here, the ban cannot stand. The decision was 5-4 with O'Connor voting with the majority. So, who have we got now? Ginsburg, check. Stevens, check. Breyer, check. Souter, check. Now it gets a bit dodgy... Scalia and Thomas, champions of states' rights and federalism, will probably not stand by their principles on this one. I think it's a safe bet to say they'll go for upholding the law. Will Kennedy pull a Casey? He dissented in Carhart; I find a change unlikely. Alito made his position on abortion and Roe clear. I never thought I would say this, but Chief Justice Roberts is our only hope.

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