As if the outcome of the decision weren’t bad enough, there are aspects of the majority opinion that are especially offensive. For example:
The Act also recognizes that respect for human life finds an ultimate expression in a mother’s love for her child. Whether to have an abortion requires a difficult and painful moral decision, Casey, 505 U. S., at 852-853, which some women come to regret. In a decision so fraught with emotional consequence, some doctors may prefer not to disclose precise details of the abortion procedure to be used. It is, however, precisely this lack of information that is of legitimate concern to the State. Id., at 873. The State’s interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion. The objection that the Act accomplishes little because the standard D&E is in some respects as brutal, if not more, than intact D&E, is unpersuasive. It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, undermines the public’s perception of the doctor’s appropriate role during delivery, and perverts the birth process. Pp. 26-30.
Where to begin!
- “The Act also recognizes that respect for human life finds an ultimate expression in a mother’s love for her child.” Oh really? Not in our love for one another? Not in our efforts to end human rights abuses or to demand social justice or equality? Specifically, the ultimate expression of respect for human life is the the love of mothers for their kids? This is a philosophy of human love and respect for life that is much more useful for controlling women’s sexuality than for protecting the dignity of full human life.
- “In a decision so fraught with emotional consequence, some doctors may prefer not to disclose precise details of the abortion procedure to be used. It is, however, precisely this lack of information that is of legitimate concern to the State.” Congress thinks that it is protecting women from doctors who won’t tell them the whole truth about abortion procedures and thus might lead them into decision that they will regret later? Oh come on.
- First of all, it’s true that women sometimes regret their decisions. But women also regret their choices to give birth. Lots of difficult life decisions and life circumstances lead to regrets. Therapy and good friends and appropriate care and a society that offers compassion instead of stigma can all help. And when it comes down to it, it seems less damaging to cope with the regret of having an abortion than the regret of having a child!
- Second, it’s hard to imagine that there are lots of doctors out there lying to women so that they can do abortion procedures that the women might not like. A woman seeking a late-term abortion is not in a happy place, to be sure. Her doctors are likely trying to make her situation as tolerable as it can be. Doctors are not infallible by any means, but they are generally well intentioned.
- Third, it is hard to credit Congress, at this point, with being the “full disclosure, complete information” people! Please! Especially when dealing with issues of life and death. Issues like, oh, say, war. Sure we’ll send your kids off to war without bothering to know or share complete information. But don’t let those doctors try to make a woman’s difficult situation any easier to handle.
- “It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, undermines the public’s perception of the doctor’s appropriate role during delivery, and perverts the birth process.” Congress thinks that it is acceptable to determine what procedures doctors can perform based not on the medical integrity of the procedure but based instead on the public’s perception of the procedure? Congress is afraid that if doctors perform abortions the public will lose faith in those doctor’ abilities to deliver babies?
Actually, there is a telling bit of text there: “undermines the public’s perception of the doctor’s appropriate role during delivery.” Are they afraid we’ll go back to a system of midwifry where women helped each other through birth and where the beginnings and endings of life were not quite so medicalized as they are today? Where experts and organizations had less control over our lives, and especially over women’s lives?And then there is the sentence that Feminist Law Profs call the scariest sentence in the decision:
The Act’s failure to allow the banned procedure’s use where ” ‘necessary, in appropriate medical judgment, for preservation of the [mother’s] health,’ ” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 327-328, does not have the effect of imposing an unconstitutional burden on the abortion right.
The rationale? Because if the mother’s health was truly in jeopardy the doctor could inject the fetus with something that would kill it and then do a D&E instead of an “intact D&E” and the procedure would be legal because the extraction would be of a dead fetus and not a living fetus. This is about the most twisted logic I can imagine: It’s all about where you kill the fetus? It’s all about the public image of the procedure? (A public image that was very skillfully manipulated by anti-choice activists who framed the issue as “partial birth abortion,” in the first place.)
No, it isn’t really all about those things. It’s also really about beginning to chip away at access to abortion. Period. It’s really about forcing women to continue pregnancies that they do not want to or cannot continue and it is about continuing to exert as much control as possible over women’s lives.
Register your outrage!
Act out! Speak up! Plan rallies. Write about it. Leave comments here and on the other feminist and pro-choice blogs that are mobilizing. Support organizations like Planned Parenthood and NARAL and legislation like the Freedom of Choice Act. Support research by organizations like the Guttmacher Institute and SIECUS which both offer sane, rational, well-grounded information about sexuality and reproductive health.
It won’t stop here.
Sex in the Public Square 
Elizabeth, thank you so much for posting this information. The media is so focused on Virginia Tech coverage right now that I haven’t seen or heard any news on this regressive legislation anywhere except NPR this morning.
What puzzles me so much is that this seems to have taken place behind our backs. Well, perhaps that’s unfair. While I wasn’t looking, while I was complacently riding out the rest of this administration and feeling fairly confident that the next will be a little more protective of human rights, someone drew up legislation based on seriously 19th century concepts of maternity and pushed it through. Where was I? Why wasn’t I listening?
Attempting to undo the damage of complacency through the web now.
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TangleThis, I think part of the problem is that so much time elapses between when legislation like this is passed (2003) and when the challenges reach the Supreme Court, that many of us lose track. Especially in times when war, political scandals and — much worse for sapping our attention, celebrity scandals — are on our minds. Right now, with the current administration, there are so many awful things to try to track its no wonder that some things slip past us.
Still, I remember when this legislation was passed back in ’03 and, though very alarmed by the congressional “findings,” I think some of us felt pretty sure that since the court had rejected the Nebraska ban, they would reject this one too.
The appointment of Alito to replace O’Connor was an enormous blow to that assumption. And so here we are. Awful. And just one of many awful things, really. It does start to feel like the nation is slipping ever-faster backward into the dark ages.
That said, I do have some remaining optimism. States are making progressive laws even though the federal government gets more conservative. New Hampshire is about to become the fourth state to finalize civil union legislation. Some states have taken the reins on stem cell research in contrast to the feds lockdown.
There are sensible voices out there and we need to amplify them! I guess that’s one reason that bloggers are so exciting. They can sometimes serve to sway the dominant culture discourse when they amplify the right voices at the right time. (Of course this can go the other way, too.) More on this in another post.
Anyway, TangleThis, Radical Mama, and others: Keep on speaking up! It’s not over until we let ourselves be silenced.
I’m just finishing reading the decision and plan on writing more about it, but I have to make on comment about something you wrote, Elizabeth: You rhetorically ask if whether “It’s all about where you kill the fetus.” Well, yes, and it’s even more arbitrary than that.
In the section of the majority opinion discussing Congress’s interests in the Act, Kennedy quotes Congress’s concern that the banned intact D&E abortion (so-called “partial birth abortion”) has “a disturbing similarity to the killing of a newborn infant.” Congress was, therefore, concerned with “drawing a bright line that clearly distinguishes abortion and infanticide.”
Apparently, there are two alternative “bright lines” distinguishing abortion from infanticide — one around the neck and one circling the body around the navel. (These are the measuring two measuring points used by the Act, depending on whether the fetus passes head or foot through the cervix.)
If the fetus is terminated at a point where only the legs are outside the vagina, the doctor is ok. But if he takes a bit longer and the navel is exposed — oooops!
There are parts of the decision that are illogical and prevent a doctor from using her best medical judgment in performing abortions, and there are parts that are infuriatingly paternalistic. (Why is a woman seeking an abortion always referred to in the decision as a “mother”?) I’ll address some of the major problems in this space in the next day or so.