“Again and again the uterus contracts as the cervix opens up. The tiny passageway that once allowed the entrance of a single file of sperm now must widen to about four inches to accommodate a baby’s head. . . . Human births are far more dangerous than those of other mammals or even other primates. The human brain is three to four times bigger than an ape’s brain. And the pelvis is narrower to allow us to walk upright. A human baby has to go through contortions to make it through the narrow opening. Sometimes, there is simply not enough room.” Life’s Greatest Miracle (PBS television broadcast, Nov. 20, 2001).
This quotation introduces the federal district court opinion in Carhart v. Ashcroft, a case that addresses the Partial-Birth Abortion Ban Act, Congress’s latest attempt to outlaw “partial-birth abortion.” As I will describe, the federal court in Carhart ruled that the Partial-Birth Abortion Ban Act was unconstitutional on a number of grounds. The government appealed the district court’s ruling to the U.S. Court of Appeals for the 8th Circuit. On appeal, the 8th Circuit Court of Appeals summarily affirmed the judgment of the district court.
On February 21 of this year, the newly constituted United States Supreme Court, recently packed with two new Bush appointees (Roberts and Alito), announced it would review the constitutionality of the Partial-Birth Abortion Ban Act. This could indicate that the new Court intends to reverse the rulings of the lower federal courts, which would allow the Partial-Birth Abortion Ban Act to remain law.
It could also indicate that the Court wishes only to disagree with the legal standards employed by the various federal courts -- the proper standard to apply was very much at issue in Carhart -- which would likely mean that the substance of the lower court rulings would stand. At this point, no one knows the answer to this question but the justices of the Supreme Court.
I have spent the better part of the last two months reading about “partial-birth abortion” and abortion generally, and I believe I have learned a great deal about this terribly divisive subject. I am certainly more enlightened than I was just a few months ago, yet I do not pretend to truly understand the subject or comprehend fully all the issues.
It is beyond peradventure that, as a man who is incapable of becoming pregnant and who will never face legislation that dictates whether I must carry a baby to term despite any reason I might have for terminating the pregnancy, I cannot speak with meaningful depth or understanding on this subject. Nonetheless, I will endeavor to articulate what I have learned in the hope that I may shed some limited insight on this topic that is so frequently misunderstood but so vital to our national conscience and political dialogue.
I chose “partial-birth abortion” as the first part of the Scarlet Letter series because it is the most easily understood and contains the least amount of material that fair-minded people can disagree about. In fact, the subject and its treatment by Congress and the various state legislatures can be summarized with far greater brevity than the greater abortion debate, although brevity is sadly not one of my strong points (as some of you have pointed out).
I shall first define the practice in simple, non-medical terms, and then I will explain the legislative history of “partial-birth-abortion” bans and the reaction to such bans by the courts. I will then attempt to explain why Congress and state legislatures have repeatedly tried to pass laws proscribing “partial-birth abortion” despite the absolute and profound vacuity of these laws.
As you will see in due course, legislative attempts to outlaw “partial-birth abortion” amount to little more than politically motivated attempts to draw an uninformed public’s attention to the gruesome nature of abortion. If not found unconstitutional by the Supreme Court, laws banning “partial-birth abortion” would not reduce the number of abortions; they would not save the life of a single fetus; nor would they protect or promote the health or well being of women. Sadly, the only real effect of outlawing “partial-birth abortion” is to increase the medical risk for certain women experiencing pregnancy complications.
A brief note about terminology: at the outset of this article, I have used the term “partial-birth abortion” to describe the subject matter herein because that is the term that is popular in the common lexicon. It is, unfortunately, a misleading description of the procedure and is therefore problematic. The medical term for the procedure is “intact D & E,” the “D & E” standing for “dilation and extraction,” which refers to the dilation of the cervix and the extraction of the contents of the uterus.
The American Medical Association, the American College of Obstetricians and Gynecologists, medical experts who write and lecture about the subject at this country’s premiere universities, and the courts (state and federal) prefer “intact D & E.” Congress and many state legislatures prefer the dysphemism “partial-birth abortion,” no doubt because it is conjures a more graphic association, thereby furthering the cause of attacking the right to abortion.
However, one benefit of using “partial-birth abortion” rather than “intact D & E” is that the former can conveniently be used to refer to the practice generally, while the latter tends to refer only to the procedure singularly—and such singular referential capability limits its utility as a phrase. As such, the former is somewhat more convenient despite its obvious incorrectness. In the interest of precision, I will employ “intact D & E” when possible, but I may occasionally fall back on “partial-birth abortion” when I need to refer to the subject as a whole.
A Few Misconceptions.
Contrary to what a lot of people seem to think, there are no women who are popping by their local abortion clinics and having intact D & E abortions performed. Intact D & Es are not performed in abortion clinics. They are performed in hospitals, and they are almost always performed when the situation is very dire for the mother or the child, or both.
An intact D & E is a procedure only used in advanced pregnancies (after 20 weeks of gestation). It is most often performed when the child has developed severe defects that make it unlikely to survive outside the womb, or which in some instances may leave the child in a severely deformed or defective state, such as being born without arms, legs, or vital organs. The procedure is also performed when the mother has a medical condition such that carrying a child to full term and giving birth may dramatically threaten her life or health.
Most women who are forced to terminate a pregnancy at such a late stage want to have a child, experience severe emotional distress upon having to terminate the pregnancy, and, in consultation with their physicians, only choose to end the pregnancy in the interest of the hopelessly defective child, their own life or health, or a combination of these factors. Put another way, most of the women who undergo this procedure do not wish to terminate their pregnancy but choose to only because it is a medical necessity.
In simplest terms, an intact D & E is a method of abortion that is used to terminate fairly advanced pregnancies (20 weeks and beyond). It consists of dilating the cervix (usually over the course of a couple days) to the point that the physician performing the abortion can, using an instrument, grasp some part of the fetus and pull most of the fetus through the cervical opening. Usually, by this point in the pregnancy, the fetal head is too large to pass through the cervix. As such, it is necessary for the doctor collapse the fetal head to make it small enough to pass through the cervix.
An intact D & E is a variation of the procedure known generally as “D & E” (also called a “dismemberment D & E”), in which the physician dismembers the fetus in the womb and removes the fetal parts one at a time. The reason the former is called an intact D & E is that the fetus emerges from the womb intact rather than in several pieces. In both cases, the fetal head must be collapsed before it can be removed from the uterus.
There are numerous other abortion procedures that are employed to terminate advanced-term pregnancies, but many of them require multiple instrument passes into the uterus, a practice that most physicians agree increases the risk of injury to the mother. In addition, in-the-womb dismemberment of fetuses, as opposed to the intact method of termination, often leaves fetal tissue, blood, and other organic material inside the mother, all of which tends to increase the likelihood of infection and creates potential for other medical problems that may be harmful and even fatal to the mother.
When I first read about the intact D & E procedure and saw graphics that accurately portrayed the operation, I was horrified. I immediately understood why Congress and many state legislatures have been trying to outlaw the procedure. Truly, it shocks the conscience to see a 20- or 24-week-old fetus being partially delivered to the point that the doctor can reach the fetal head with an instrument that removes the contents of the fetus’s cranium. There is no question that it is a gruesome and frightening procedure.
Initially, I couldn’t understand why nearly every federal court that has addressed such laws had held the laws to be unconstitutional. Thus began my research.
Necessary Background: The “Life Exception” and the “Health Exception.”
As I described in a previous post (Prolusion, April 16, 2006), the Supreme Court in Roe v. Wade (1973) held that, before fetal viability (the point at which the fetus can survive outside the womb), women have the right to choose to terminate their pregnancy. After the point of viability, because of the State’s interest in the potentiality of human life, it is permissible for the state to regulate or even outlaw abortion except where an abortion is deemed necessary to preserve the life or the health of the mother. The first part of this exception is known as the “life exception”; the second part, the “health exception.”
Nineteen years after Roe, the Supreme Court affirmed the right to choose in Planned Parenthood v. Casey (1992). In Casey, the Supreme Court reiterated the life and health exceptions: “subsequent to viability, the State in promoting its interest in the potentiality of human life may . . . regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or the health of the mother.”
In other words, under Roe and Casey, any law regulating abortion or a method of abortion—even late-term abortions that occur after the point of fetal viability—must contain both a life exception and a health exception. It is important to note, however, that most "partial-birth abortions" involve fetuses that have not yet reached the point of viability.
Prior Legislative History.
From 1995 to 2000, Congress made several attempts to ban “partial-birth abortion,” all of which were vetoed by President Clinton. However, several states managed to pass laws proscribing “partial-birth abortion” during the last part of the 20th century, but many of the state statutes expressly excluded a health exception.
The states argued, as Congress would later argue, that the health exception was unnecessary because safe alternatives to “partial-birth abortion” were available, such that an intact D & E was never truly medically necessary to preserve the health of the woman in light of these other “safer” alternatives. According to the states, if other methods of abortion existed and these methods were as safe or safer than the intact D & E procedure, the health exception would never be triggered by the missing alternative of the intact D & E.
Under these state laws, if your doctor determined that an intact D & E was necessary to save your life, you could undergo the procedure—because the laws did contain a life exception. However, if your life was not in jeopardy, you could not avail yourself of the procedure, even if your doctor determined that an intact D & E was the safest procedure available under your specific set of medical circumstances (i.e., other more dangerous abortion procedures were available).
It is difficult to overlook the staggering failure of logic that attempts to reconcile within a single statute the contrary notions that there might exist some circumstances in which an intact D & E is necessary to save a woman’s life, but there are no circumstances in which an intact D & E is necessary to preserve the woman’s health. However, this was not the basis on which the United States Supreme Court, in Stenberg v. Carhart (2000), invalidated the various state laws that sought to ban the intact D & E procedure in the late 1990s.
Prior Judicial History: Stenberg v. Carhart.
In Stenberg, after reviewing the testimony of numerous expert witnesses on both sides of the “partial-birth abortion” issue, the Supreme Court held that “significant medical authority supports the proposition that in some instances, [intact D & E] would be the safest procedure.”
The Court also held that because post-viability abortions (which occur after the point that the State's interest in protecting the "potentiality of human life" is heightened) require a health exception, certainly pre-viability abortions (such as "partial-birth abortions") require a health exception as well.
The Stenberg Court then went on to establish a logical corollary of the health exception to specifically address the issue of the missing health exception in the state "partial-birth abortion" laws. The Court declared that a State may not endanger a woman’s health when it regulates methods of abortion, nor may a State force women to use riskier methods of abortion.
As such, these early state statutes criminalizing “partial-birth abortion” met an early demise due to their intentional exclusion of a health exception, chiefly because the laws would have forced some women to undergo more dangerous abortions than necessary.
Exactly why these states purposefully omitted a health exception in direct contravention of the dictates of Roe and Casey, thereby risking a nearly immediate judicial extermination, is a fascinating question. If you believe the states’ argument that safer alternatives to “partial-birth abortion” were available and that an intact D & E was never necessary to preserve the health of a woman, to include the health exception would have had very little effect on the actual application of the law, for the exception would have been rarely invoked, if ever.
The Most Recent Law.
In 2003, Congress attempted to criminalize the intact D & E procedure yet again (the Partial-Birth Abortion Ban Act) and President Bush happily signed the bill into law. The full text of the law can be found
here. (Print it and read it. It is only seven pages and it takes 5 minutes to read. You'll be amazed.)
Note in paragraph 8 of section 2 of the congressional “findings,” Congress tries to stake out constitutional territory by asserting “Congress is entitled to reach its own factual findings,” regardless of the what the Supreme Court found to be true about the relative safety of the intact D & E procedure in Stenberg.
Recall the Supreme Court’s ruling in Stenberg that “significant medical authority supports the proposition that in some instances, [intact D & E] would be the safest procedure.” In order to effectively overrule Stenberg and the Supreme Court (not through the courts but legislatively—a constitutional end-run, so to speak), Congress argued that the Supreme Court got it wrong in Stenberg and that Congress—not the courts—would be the branch of government to make factual determinations in regard to federal law.
Congress very pointedly claimed—with an unscientific certainty usually reserved for religious pontification—that despite the Supreme Court’s ruling to the contrary in Stenberg, an intact D & E is in fact never medically necessary to preserve the health of the woman.
The law, which only runs to seven pages, contains the following language of certitude (my emphasis in each example):
"A moral and medical consensus exists that the practice of performing a partial-birth abortion … is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.”
"[P]artial-birth abortion remains a disfavored procedure that is not only unnecessary to preserve the health of the mother, but in fact poses serious risks to the long-term health of women . . . ."
“[O]verwhelming evidence presented and compiled at extensive congressional hearings . . . demonstrates that a partial-birth abortion is never necessary to preserve the health of a woman . . . .”
“Congress has reached its conclusion that a ban on partial-birth abortion is not required to contain a ‘health’ exception, because the facts indicate that a partial-birth abortion is never necessary to preserve the health of a woman."
“These findings reflect the very informed judgment of Congress that a partial-birth abortion is never necessary to preserve the health of a woman . . . .”
With this law, Congress is telling the Supreme Court that, in its “very informed judgment,” an intact D & E cannot possibly be and will never be the safest medical procedure for a woman requiring an abortion, presumably even considering the unfathomably broad spectrum of medical conditions and circumstances that may arise throughout the population.
In essence, despite the requirement from Roe, Casey, and Stenberg that laws limiting abortion rights must contain a health exception, Congress told the Supreme Court that the Court could take its health-exception requirement and stick said requirement right up the Court’s pasty-white jurisprudential ass.
Congress is Full of Shit.
The federal district court in Nebraska that first heard Carhart v. Ashcroft, the case challenging the Partial-Birth Abortion Ban Act, issued an excruciatingly detailed and thoughtful 474-page opinion that is available here
if you are so pathetic that you have time to read something like this. (It took me about two weeks to get through the whole thing.)
The opinion examines, catalogues, and summarizes with forensic determination all the testimony and other evidence Congress relied upon in making its “very informed judgment,” and it also recounts nearly all the in-court testimony that was given under oath before the federal court on the subject.
So as not to keep you in too much suspense, the court found that Congress was not just incorrect that the intact D & E procedure is never medically necessary to preserve the health of the woman; the court found the Congress was plainly and very obviously wrong, and that no reasonable person could have come to the same conclusion.
How wrong was Congress? Pretty fucking wrong, it turns out. Even the government’s primary witness at trial, the head of obstetrics and gynecology at Yale, testified that there were definitely circumstances in which an intact D & E would be the safest procedure for a woman forced to terminate her pregnancy due to complications. He stated that there were “compelling enough arguments as to [intact D & E’s] safety, that I certainly would not want to prohibit its use in my institution.”
Renowned medical professors and physicians from Columbia University, Cornell Medical Center, Johns Hopkins, Northwestern, Albert Einstein College of Medicine, NYU, the University of California at San Francisco, Boston Hospital for Women, the University of Rochester, and numerous other preeminent universities and medical institutions also testified similarly against Congress’s ban of the intact D & E procedure.
Additionally, the ACOG (the American College of Obstetricians and Gynecologists), a 44,000-member organization of physicians, all of whom are certified by the American Board of Obstetrics and Gynecology, issued a policy statement introduced at trial that reads in part: “An intact D & X . . . may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman’s particular circumstances can make this decision.” (The ACOG went further to say that “[t]he intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous.”)
Now, recall the congressional finding that the intact D & E procedure is never medically necessary to preserve the health of a woman. Of the 11 doctors with abortion experience who presented information to Congress, 10 of them disagreed with this finding. Of the eight doctors who presented information to Congress who had actually used the banned procedure, seven of them opposed the ban and argued that the procedure was the best and safest procedure in certain circumstances.
And now recall the congressional finding that the procedure “poses serious risks to the long-term health of women.” After reviewing all the evidence, the court noted with approval an expert witness’s view that there was no “biological plausibility to this statement” and declared that “it borders on ludicrous to assert that the banned procedure is dangerous” when compared with other abortion procedures and childbirth generally.
In other words, partial-birth abortion is not just a horrible, senseless procedure that has no medical purpose. Instead, it is a valuable procedure that is sometimes the safest procedure for a woman who must, out of medical necessity, terminate a advanced-term pregnancy. In the words of the court: “the congressional record proves the opposite of the congressional findings.”
At this point you should wonder why it didn’t occur to you in the first place that doctors all over the country wouldn’t have been utilizing this procedure if it were in fact senselessly horrific and if obviously safer alternatives existed.
Would Congress’s Ban on Partial-Birth Abortion Reduce the Number of Abortions?
As it turns out, Congress’s ban on the intact D & E procedure would have done nothing to prevent abortions or reduce the number of abortions performed. As we have discussed, women who undergo this procedure typically do so out of medical necessity—not because they simply do not want to bear a child for one reason or another. As such, there would be practically no fewer abortions performed if the banned procedure were not available. The abortions would occur anyway, but the physicians performing the abortions would have no choice but to resort to abortions procedures deemed less safe and more likely to endanger the health of the woman.
Furthermore, the law does allow an intact D & E if it is necessary to save a woman’s life, but if her life could be saved by another type of abortion, even one that gravely threatens her health, an intact D & E becomes a criminal act punishable by jail time for the doctor.
Would Congress’s Ban on Partial-Birth Abortion Promote Women's Health?
Uh, no. Let’s say you are 23 weeks along in your first pregnancy and you discover that your child, whom you’ve already named and whose nursery you’ve prepared, has a medical condition that will not allow him to survive outside the womb. (If you are a guy reading this, imagine the subject of this hypothetical is your wife.)
Your doctor informs you that carrying the child to term poses a very high risk of mortality for you. She tells you that, in her best medical judgment, it will be necessary for you to terminate the pregnancy as soon as possible. She informs you that an intact D & E would be the safest procedure for you, but it is not necessary to save your life. In other words, you’re going to live whether you have an intact D & E or not, but there are additional health consequences attendant to not having an intact D & E. She informs you that the other abortion procedure you can undergo will result in a hysterectomy and you will no longer be able to have children.
If Congress’s ban on the intact D & E procedure is allowed to stand, you will be forced to undergo the worst of the two alternatives. Your physician will face the very real prospect of incarceration if she performs the intact D & E.
Lest there be any doubt that doctors performing intact D & Es would be in imminent danger of prosecution under this law, on the day Bush signed the bill into law, John Ashcroft wrote the Director of the FBI, all U.S. Attorneys, and all FBI Special-Agents-in-Charge and informed them that the “Department of Justice will enforce vigorously the criminal provisions of this Act.”
What the Fuck, Congress?
If Congress were truly acting in good faith, why would it pass a law proscribing only one method for performing mid- to late-term abortions when (1) the law would not actually reduce the number of abortions; (2) the law would proscribe in some circumstances the safest medical alternative for a woman, thereby possibly endangering women in some circumstances; (3) there are other, equally or more gruesome abortion procedures, such as dismemberment abortions, that Congress did not criminalize; and (4) more than a preponderance of the medical testimony received by Congress indicated that the intact D & E procedure was sometimes the safest medical alternative?
According to Judge Richard A. Posner, former chief judge (1993-2000) of the United States Court of Appeals for the 7th Circuit and a shrewdly insightful and well-respected jurist and legal mind, “there is no meaningful difference between the forbidden and the privileged practice. No reason or policy or morality that would allow the one would forbid the other. We should consider therefore why any state would pass such a law.” Indeed we should.
According to Posner, by enacting such laws, abortion opponents in state legislatures and Congress seek to “dramatize the ugliness of abortion.” Abortion opponents, perhaps cleverly, perhaps almost accidentally, discovered an uninformed public quick to oppose “partial-birth abortion,” for when packaged and sold by abortion opponents, the procedure appeared to the public as gratuitously and unnecessarily cruel. Demonstrating the apparent cruelty of this one procedure leads one inexorably to the conclusion that abortion generally is a cruel and inhumane practice, and it tends to provide an argument against the validity of the basic right to abortion, thereby “elevating the public’s concern over the fate of the potential human lives that are exposed to abortion.”
With the issue so presented and having captured the public imagination, so enter our scientifically illiterate, pandering politicians, who no doubt recognized the political danger of voting against something so heinous in the public’s uninformed judgment as “partial-birth abortion.” Political opportunism was plainly weighed against the possible danger to women’s health in this narrow arena, and to no one’s surprise, the former prevailed over the latter.
These statutes, according to Posner, “are not concerned with saving fetuses, with protecting fetuses from a particularly cruel death, with protecting the health of women, with protecting viable fetuses, or with increasing the . . . population . . . . They are concerned with making a statement in the ongoing war for public opinion . . . .” And that’s what it’s all about, folks.
We should all be able to agree that a world with fewer abortions is preferable to one with more abortions. Abortion, particularly those that must occur in the later stages of pregnancy, is undeniably a morbid and ghastly procedure; anyone who holds even a modicum of respect for life (not just human life) should view it with some amount of horror. Yet we live in a world in which killing is so commonplace that respect for life and compassion for living things seems to be slowly and quietly disappearing.
Our species has repeatedly demonstrated a willingness (and, sadly, an eagerness) to enter into conflicts and wars that will necessarily result in mass casualties; we build weapons designed specifically to efficiently kill individuals and vast numbers of people at once; we happily advocate execution of those whom we believe have broken our country's most sacred laws, and we do so despite clear evidence that our criminal-justice system (a human system) is riddled with error and incompetence.
We hunt and kill all manner of animals for sport and we even broadcast these images on sports television networks for all to see and enjoy; the hunters cheer and congratulate each other when, from a comfortable distance away, they shoot and kill an elk or a deer. We destroy forests that are home to countless species of insects, birds, and other life that has doubtless evolved on this planet for thousands or millions of years in exchange for logging or commercial space for a new Wal-Mart.
We sanction the extermination of tens of millions of chickens, pigs, cows, and turkeys every year so we can eat them, not because we require them for our very survival, but because we think they taste good. We all know that myriad homeless dogs and cats are gassed to death at pounds, yet we do nothing to save them.
We live in nice houses, drive expensive cars, own lots of comparatively valueless possessions, and nearly all of us do this every day knowing goddamn good and well that there are millions of children and adults starving and dying of preventable diseases across the globe who need help. In the time it has taken to read this essay, you can be sure that hundreds if not thousands of children in the poorest regions of the world have perished. Is this life not also sacred?
There appears to be so little true compassion remaining in the world. Indeed, we seem to enjoy killing far more than saving; we enjoy violence and destruction far more than kindness. When one does discover evidence of compassion, it appears most often in the form of selective compassion; that is, most often we choose to be compassionate about some causes but illogically ignore others that equally deserve our compassion. This is very obviously the case with abortion.
I find it perplexing how many of those espousing the anti-abortion cause who claim that life is so inherently sacred seem to care so little for the existing life of the mother, or for children who are dying by the millions in other parts of the world, or for the scores of common people of Iraq who have been killed by our country's aggression, or for the millions of animals destroyed for food consumption or sport every day throughout the world. Life is either inherently sacred, or it's not.
Consider for a moment the vast numbers of children born in impoverished areas of the world in the absence of proper health care, medicine, and housing. Unlike children born into privileged circumstances, these children are significantly less likely to survive pregnancy and birth due to an absence of proper nutrition and prenatal medical care, and the infant-mortality rate in third-world countries (which doesn't include miscarriages and spontaneous abortions) is truly alarming.
Similarly, the number of severe birth defects occurring globally each year is staggering, and many of these children either live greatly abbreviated lives (from minutes to days to just a few years) while others are forced to live out their lives in a horribly handicapped state, requiring assistance to eat, walk, and go to the bathroom. How many anti-abortion protesters give a moment's thought to these poor children? More to the point, how many anti-abortion protesters expend their energy and resources trying to save the lives of these children?
I believe laws like the Partial-Birth Abortion Ban Act mark the very worst of selective compassion. Indeed, I view this law and others like it as a complete failure of compassion, and those responsible for it should be brought to task.
The law, in effect, endangers some women who, out of medical necessity, are compelled to terminate a threatened pregnancy that, in many cases, would bring a child into the world for only a brief, difficult existence -- an existence that is difficult not only for the child, but also for her mother, whose anguish for having caused such pain for her child is surely indescribable. The law, which purports to embody compassion for human life, is a despicable fallacy that steals compassion from precisely those persons who, within this context, need it the most: the mother forced to choose between her life and her child's; the mother tortured with the thought of bringing forth a child who will succumb to severe birth defects or live her life only with extraordinary assistance from others; the child who, through no fault of her own, will experience a tragically abridged life, if any life at all.
Ultimately, the Supreme Court, with two new justices hand-picked by the Bush administration, will decide whether the Partial-Birth Abortion Ban Act will stand or fall. I tend to believe that the Court, even with the two new "conservative" justices, will send the law back to Congress with a stinging rebuke in payment for Congress's intentional and ideologically motivated attempt to circumnavigate the Court's direct and unequivocal mandates in regard to the health exception developed in Roe, Casey, and most recently in Stenberg.
We can only hope that the Court views the Act for what it is: an irresponsible, fumbling attempt by Congress, acting as a vehicle for the conservative social and political right, to strike with a blunt instrument at abortion rights generally. One must assume that those responsible for this legislative travesty made the conscious decision somewhere along the way to sacrifice the health of a small number of women -- those for whom an intact D & E would be the safest procedure -- in exchange for gaining political leverage in the ongoing war for public opinion over Abortion.
Magnificent! You are a total bad ass.
Very interesting and readable. Also quite shocking. (Two things were shocking -- the graphic pictures as well as legislators' blatant disregard for the information provided by medical experts.) One point I would add to your conclusion would be that there are children in our own country, in our own state and city even, who do not have enough food to eat and who do not have a safe place to live.
I have a friend who was forced to terminate a pregnancy after twenty weeks due to severe and fatal birth defects discovered at her 20-week ultrasound. This woman, and women like her, deserve the safest and best procedures that medical science has to offer. I can't begin to imagine how painful and traumatic the whole experience was -- and find it frustrating that doctors could be forced to make medical decisions in these horrible situations based on religion and politics.
Congress ought to be able to make determinations about medical procedures that have moral components, such as those involving stem cells and certainly those involving human life such as euthanasia and abortion. Regardless of the testimony Congress might or might not have received, if Congress determines that a medical procedure is morally reprehensible, it should be able to ban the procedure, even if the procedure might benefit a small number of people. Congress has the prerogative to balance harms, and in this case Congress very rightly decided that the moral case against partial birht abortion was sufficient to outweight the harm to an insignificant number of women who arguably might benefit from the procedure. Congress, which is representative of the people (in theory at least) is entitled to make this determination, not the courts.
In my view, Congress has no business telling doctors what procedures are safe and what procedures are not safe. I mean, who do you trust on this? The largest collection of OB/GYN doctors on the planet or Congress? Remember will Bill Frist watched 5 minutes of video of Terry Schiavo and said she wasn't vegetative? And unfortunately he's about the best Congress has to offer as far as doctors are concerned.
I just finished reading the “Partial-Birth Abortion Ban Act of 2003" and I was wondering if you say something is so three times, does that make it true? Is it like making a wish? As you noted, in the Act they frequently said that the practice was never necessary, but specifically three times they used the exact same phrase: “a partial-birth abortion is never necessary to preserve the health of a woman”. Three is such a nice number (like the Holy Trinity, or an average clover, or – as stated earlier – a wish) that I thought I would stick with that wording. I actually had hoped they were going to say it a lot so that I could have some impressive statistic to dazzle myself with. Alas, they did not. Three times. Star light, star bright....
Reading this made me seriously consider calling my doctor to schedule a tubal ligation to avoid ever getting pregnant again in the event that my pregnancy ever threaten my life or health. What woman would “wish” to undergo such a horrific ordeal? Not a one. Just reading about it made me a little queasy. I was unhappily surprised when I too read “Congress is entitled to reach its own factual findings”, so I highlighted it. Staring at it in yellow did not make it any better, but it did temporarily do funny things to my vision.
Hey, thanks for making the doctor in your hypothetical situation a woman. A nod that did not go unnoticed. Long live the queen.
As for the reasons why this issue has even made its way to the media, why this law was passed and why we’re even discussing it now, I completely agree with you and Posner when you quoted him saying it “dramatize[s] the ugliness of abortion”. For such a rarely occurring medical practice, you’d have to be living under a rock to not know about it. I am totally with you on everything you said in the latter part of your essay and the only contribution I can make is from chapter 18 of the Tao entitled “The Decay of Ethics” and reads:
“When the way of the Tao is forgotten,
kindness and ethics need to be taught;
men learn to pretend to be wise and good.
All too often in the lives of men,
filial piety and devotion
arise only after conflict and strife,
just as loyal ministers all too often appear,
when the people are suppressed.”
To Aurelius: you state that "the moral case against partial-birth abortion was sufficient to outweigh the harm to an insignificant number of women." This is a problematic position for a number of reasons, not the least of which is your apparent belief that a "small number of women" equates to an "insignificant number of women." If you are married or otherwise have a close female acquaintance, I respectfully submit that you should have tested your comment on her before recording it here.
It is certainly true that medical circumstances requiring the intact D & E procedure occur less frequently than other medical circumstances that prompt more common procedures such as tonsillectomies, wart removals, and APIT procedures (assuagement of pernicious in-grown toenails, a symptom ubiquitous in the poorest Appalachian mountain regions, where "corn-chip toenails" are endemic). However, frequency of occurrence is an irrelevant and meaningless indicator when one's individual treatment is being considered.
Indeed, it would be little consolation to be informed by your doctor that while Congress has forbidden the optimal treatment of your potentially life-threatening ailment, the ailment happily is rare.
All the fun aside, it strikes me as supremely arrogant and myopic to advocate the elimination of a medical treatment on the justification that it would only prevent harm to an "insignificant number of women." As Soccer Mom indicated above, any woman forced to undergo such a horrific ordeal is entitled to the safest and best procedures available. The fact that this procedure is only rarely required does not justify subjecting some women to a greater risk of harm than necessary.
I wonder if you are married, if you have children already, or if perhaps you and your (present/future) spouse will try to have children. If your wife becomes pregnant, how confident are you that she will not be faced with terminating her pregnancy late-term due to potentially life- and health-threatening complications? If you support the ban on partial-birth abortions and you and your wife find yourselves in that position, I'm willing to bet that you're going to feel like an asshole when it does.
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