Thursday, April 19, 2007

The Partial-Birth Abortion Decision

Father Knows Best. Dr. Kennedy's magic prescription for indecisive women.
By Dahlia Lithwick

The key to comprehending the Supreme Court's ruling today in Gonzales v. Carhart upholding the federal partial-birth abortion ban is a mastery not of constitutional law but of a literary type. Justice Anthony Kennedy's majority opinion is less about the scope of abortion regulation than an announcement of an astonishing new test: Hereinafter, on the morally and legally thorny question of abortion, the proposed rule should be weighed against the gauzy sensitivities of that iconic literary creature: the Inconstant Female.

Kennedy invokes The Woman Who Changed Her Mind not once, but twice today. His opinion is a love song to all women who regret their abortions after the fact, and it is in the service of these women that he justifies upholding the ban. Today's holding is a strange reworking of Taming of the Shrew, with Kennedy playing an all-knowing Baptista to a nation of fickle Biancas.
As a matter of law, the majority opinion today should have focused exclusively on what has changed since the high court's 2000 decision in Stenberg v. Carhart. Stenberg struck down a Nebraska ban that was almost identical to the federal ban upheld today. That's why every court to review the ban found the federal law, passed in 2003, unconstitutional. What really changed in the intervening years was the composition of the court: Sandra Day O'Connor, who voted to strike down the ban in 2000, is gone. Samuel Alito, who votes today to uphold it, is here.

What hasn't changed is that Anthony Kennedy finds partial-birth abortion really disgusting. We saw that in his dissent in Stenberg. That's what animates and drives his decision. His opinion blossoms from the premise that if all women were as sensitive as he is about the fundamental awfulness of this procedure, they'd all refuse to undergo it. Since they aren't, he'll decide for them.

Kennedy halfheartedly attempts to distinguish Stenberg from Gonzales. Sparing us his usual lofty opening sonnet to freedom and liberty and truth and good lighting, he opens with the terse insistence that this case is not Stenberg: The act is both "more specific" and "more precise" than its Nebraskan precursor. The court can uphold it without revisiting Stenberg. That's nice for Kennedy, since he is one of the authors of the famous peaen to precedent in Casey that was the basis, in that 1992 case, for upholding Roe v. Wade.

Rather than admitting that his opinion today is at odds with Stenberg, Kennedy walks his reader through the horrors of the intact dilation and extraction procedure Congress has banned. This discussion goes on for five pages, and includes, for balance, an "abortion doctor's clinical description" of the abortion at issue, and that of a nurse who witnessed the procedure being "performed on a 26 1/2 week fetus." (The nurse's version: "the doctor stuck the scissors in the back of his head and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he think's he's going to fall.")

Kennedy contends Congress fixed the problems with the Nebraska ban in two vital ways: by making factual findings, and by narrowing the definition of the procedure such that doctors of "ordinary intelligence" know which operations will be illegal and which will not.

And then Kennedy quickly returns to the business of grossing us out. With a stirring haiku about how "respect for human life finds an ultimate expression in the bond of love the mother has for her child," the justice interpolates himself between every one of those mothers and every child she might ever bear. Without regard for the women who feel they made the right decision in terminating a pregnancy, he frets for those who changed their minds. ("It seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.") (The "infant," not the "fetus.") As both the dissenters and my colleague Emily Bazelon have pointed out, this portrayal of a rampant epidemic of regretful women may or may not be scientifically accurate. (The American Psychological Association doesn't think so.) But even if the numbers of women who would truly choose differently if they could choose again are larger than most of the medical literature indicates, one might question whether such women should be the pole star of national abortion policy.

Nobody disputes that whether or not they decide to go through with an abortion, women face a heart-wrenching choice. But for Kennedy only those women who regret the decision to abort illuminate some deeper truth. And Kennedy's solution for these flip-flopping women is elegant. Protect them from the truth. "Any number of patients facing imminent surgical procedures would prefer not to hear all details," he concedes. "It is, however, precisely this lack of information concerning the way the fetus will be killed that is of legitimate concern to the state." In Kennedy's view, if pregnant women only knew how abhorrent the procedure was, they'd always opt to avoid it. But as Justice Ruth Bader Ginsburg points out in dissent, Kennedy doesn't propose giving women more information about partial-birth abortion procedures. He says it's up to the Congress and the courts to substitute their judgment and ban the procedures altogether. ("I'm sorry Bianca, there is a procedure out there that may be safer for you, but some day, you will thank me for sparing you from it.")

Then Kennedy sorrowfully returns to the Indecisive Women. "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."

One core proposition that's held true from Roe v. Wade to Planned Parenthood v. Casey and Stenberg was that abortion regulations, in order to be constitutional, required an exception if the mother's health was in danger. For the first time today, Kennedy determines that a court's factual determination about whether some procedure may be necessary to protect the mother's health can just evaporate in the face of "medical uncertainty." That turns both Casey and Stenberg on their heads. After today, "medical uncertainty does not foreclose the exercise of legislative power." And even where some of the building blocks of that "uncertainty" are patently untrue. Henceforth if there is uncertainty about the health consequences of the ban, the tie will go to the banners.

Kennedy devotes the remainder of his opinion to taking cover under standing doctrine. "Standing" to bring suit is the Roberts court's trapdoor to keep pesky litigants away from the courthouse. On this front, too, Kennedy turns Casey and Stenberg on their heads with nary a backward glance. His opinion pretty much unfurls a roadmap for states seeking to enact broader bans on abortion. As Ginsburg points out in her dissent, the court's rationale for upholding the ban on intact D&Es would support a ban on the (far more common) nonintact D&E as well.
It's hard to fathom why Kennedy has so much more sympathy for the women who changed their minds about abortions than for those who did not. His concern for Inconstant Females might be patronizing in any other jurist. Coming from him, it's brilliantly ironic. Kennedy is, after all, America's Hamlet. The man who famously worried that "sometimes you don't know if you're Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line," will long be remembered as the living incarnation of agony and indecision, And today he seamlessly rewrites his Stenberg dissent as a majority opinion that blasts his earlier Casey vote to its core.
I'm no psychologist but in light of today's Gonzales opinion one has to wonder: Is all of Kennedy's tender concern over those flip-flopping women really just some kind of weird misplaced justification for his flip-flopping self?


retro_liberal said...

Here are my concerns in regards to abortion, and the ban on partial birth abortion. First of all everything I have read seems to indicate the procedure is banned even if the mother’s health is at risk. Well, that’s just plain wrong. An unborn child is just that, and unborn child. A mother is a living breathing person who has thoughts and feelings, someone who can make rational decisions. If the survival of the baby puts the mother’s life at risk, how can anyone say the mother should possibly die for the safety of the child?

I know the arguments, and none of them are sound. Abortion is a horrible thing, but, it’s a necessary evil. If abortions were banned, women would self abort, thus causing more harm to themselves than any gruesome procedure a doctor performs. From all of my readings partial birth abortions are the rarest type of abortions and generally performed only if absolutely necessary.

It also seems quite odd to me that someone will argue fervently for an individual’s right to buy as many guns as they can afford, yet, those same individuals argue that a woman doesn’t have the right to have an abortion. After all, it is her body, she is the one that is going through the pain and anguish of carrying a child to term, and she is the one who must deal with the consequences of having the abortion.

gorefan said...

I find this to be yet another case of men working to impose their will on women. All five of the justices who ruled in favor of the abominable partial-birth abortion ban were men. Not one of those five justices knows what it is like to have to carry something that could bring such severe complications as blindness, heavy bleeding and infections (the American College of Obstetricians and Gynecologists has found that in many cases, partial-birth abortion is the safest way to prevent women from suffering those problems). As Ellen Goodman pointed out in the April 20, 2007 issue of the Boston Herald, the group of legislators applauding President Bush's signature of the ban also consisted entirely of men who would never have to worry about their bodies being severely and permanently damaged by a pregancy gone wrong.

I an also aghast at the decree that the burden of proof is now on the women and doctors who argue that partial-birth abortion is the safest procedure instead of the politicians who say that other procedures are just as safe. Innocent until proven guilty is good policy when dealing with people but horrible policy when it comes to something as touchy, vital and potentially dangerous as a medical procedure. An editorial in the April 23, 2007 issue of the Newark Star-Ledger illustrates this point quite well. The editorial pointed out that by the time the court could rule on whether or not a woman needed a partial-birth abortion, it would be too late because "the time for the abortion would have passed".

Anonymous said...

420ComfortablyNumb said...
The real question and the reason why I have not personally made or plan to make a decision about abortion is this: How developed does a fetus have to be so that it is considered a human being? There are arguments for both sides. If a blob of cells the size of a peanut is a human being then abortion would most definitely be considered constitutionally wrong, since the blob is a separate entity from the mother, even though the mother is required and physically connected to the blob. If a baby is not considered “human” until after birth then abortion can be compared to removing a wart (as insensitive as it may be). Thus I still don’t know and might not ever know what constitutes human life. I do agree that a woman’s body is her own right and should not be told by men what they can or can not do. I look at the pro-life side of the argument and can’t help to think of Beethoven. Beethoven was the ninth kid of a mother who had syphilis among other diseases and could definitely not care for nine kids. Today, a baby in this situation would be considered “abortion acceptable”. Yet without Beethoven the world would be a little less wonderful. I also analyze the pro-choice side and think of how horrible it would be to have somebody tell you what you can or can not do. It scares me to think of a future when our human rights are neglected. Alas the dilemma still rages on in my head.

Sheena said...

Anthony Kennedy’s “opinion blossoms from the premise that if all women were as sensitive as he is about the fundamental awfulness of this procedure, they'd all refuse to undergo it. Since they aren't, he'll decide for them.” This is my issue on how the Supreme Court handles things like this. What really gives them the right to tell me what I can and can’t do with/to my own body? I, personally, don’t consider ever having an abortion, especially a partial-abortion, but I do like to know that if my health or, more importantly, my life, is at risk I have that option. I don’t really understand how it is fair for a group of men to decide what is right for a woman and her body. Maybe someday men will be able to make that decision; the day that they can become pregnant.

Mr. Moneybags said...

To Retro Liberal

The baby is a person with a heart beat after 8 weeks. This ban was upheld because it dealt with third-trimester abortions. The ban stands even if the mother is at risk because there are now several different procedures available than just this unique abortion technique to save the mother’s life. My mother would die for my safety. She would do so out of the direct love only found in a mother’s heart for their child. You just destroyed your own argument by saying "partial birth abortion is the rarest form of abortion and generally performed if only absolutely necessary." The fact is that you're right, so why not just remove this horrible way of killing a child completely? Since it’s already rare and never used. There are much less invasive and brutal procedures that can be performed to save the life of the mother in question. To argue otherwise is na├»ve. Think of this ruling as retiring a jersey in the rafters of abortion.

It maybe a woman's body, but once she became pregnant it became another persons incubator. If the fact is that if she hasn't had an abortion up until the third trimester she wants to have the baby. Killing a fetus with arms, legs, brain, kidneys, heart, mouth, and spine is just like killing a person. The fact is that abortion is still legal, making this argument a moot point. However, this ruling did remove one of the most brutal medical procedures in modern medicine. I agree 100% with the Supreme Court's decision.

Aaron said...

My thoughts on abortion....Although I have never been in the situation where someone close to me has wanted/needed one I have to say I'm strongly opposed to abortion of all forms, in all cases. Nothing...Absolutely nothing gives any human the authority to choose whether another human is to live or die. In simple words. Abortion is equal to murder. Who gives us the right, the power to play God? To decide if this unborn child, fetus, whatever you want to call it is to live? Whether its a child, fetus, whatever it still has potential to live. Who knows...It may be the next American President, Pop-Star, or construction worker. Regardless no one human should ever be allowed to decide whether an unborn child can live or die. In cases where the mothers life is in danger than so be it. Evidently that is the way nature intended it so who made us God to change it? In plain simple words....Abortion is wrong.