More on the Awfulness that is Gonzalez v. Carhart, the first successful nationwide banning of an abortion procedure

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.

Shocking.

Today the US Supreme Court for the first time upheld a nationwide ban on an abortion procedure. The Court ruled on two challenges to the “Partial Birth Abortion Act” of 2003. One challenge was brought by the Center for Reproductive Rights on behalf of physicians who provide abortions (Gonzalez v. Carhart) and the other was brought by Planned Parenthood Federation of America on behalf of it’s network of women’s health clinics.

Here is a link to the act and here is a link to today’s decision.

You might recall that back in 2000 the Supreme Court rejected a Nebraska ban on this same set of procedures (less dramatically and more medically accurately called “intact dilation and extraction”) because it failed to include an exemption in the case that the mother’s health was at risk.

The current ban also fails to provide such an exemption.

So, how could it be upheld by the same court that rejected Nebraska’s ban? There are two main differences. First, this is not the same court, really. With the retirement of Sandra Day O’Connor and the appointment of Samuel Alito, the balance on the court tipped toward the conservative on reproductive rights issues. Second, there is an interesting bit of legal-but-logic-defying procedural stuff that Tom Joaquin might be able to speak to better than I, but that goes something like this, as argued in the findings in Section 2 of the Act.

1. In the Nebraska case, (Stenberg v. Carhart, 2000) it was a Federal district court that first found that the law in question placed too great a burden on women because of it’s failure to allow the procedure to protect a woman’s health. In reaching that decision, the Federal district court in that case found there to be significant medical evidence to support the claim that this procedure is sometimes necessary to protect a woman’s health. On appeal, the 8th Circuit court found that the findings on which the district court based its decision were not “clearly erroneous” even though many anti-abortion activists claim that the procedure is never medically necessary and is sometimes even harmful to a woman’s health. The US Supreme Court agreed that the lower court’s findings, while in dispute, were not “clearly erroneous.”
2. Congress, on the other hand, is apparently not bound by those findings. So, in the push to pass the “Partial Birth Abortion Act of 2003,” Congress held lots of hearings at which enough people said “this procedure is gruesome and is never medically necessary and even sometimes harms women,” that Congress indeed found that the procedure “is a gruesome and inhumane procedure that is never medically necessary and should be prohibited,” and it passed the ban.
3. So, in this set of cases, the Supreme Court was presented with a new set of findings, these by the US Congress, that the procedure is never necessary to protect a woman’s health and so, voila, they allowed the ban to stand even though it failed to include an exemption for the health of the woman.

Shocking. Congress is authorized to determine what is medically necessary. Congress is authorized to determine what is medically accurate. A body that is at its core a political body and not a scientific body — this group gets to decide, according to the Supreme Court, what procedures are appropriate for safeguarding a woman’s health. Mind you, we are not talking about Congress deciding what procedures to offer fund with public health money. No, we are talking about Congress deciding what procedures your doctors are allowed to perform. And the penalty for performing a prohibited abortion? A fine and or up to two years in prison. Two years in prison for performing a procedure that many doctors and pregnant women find medically necessary in order to preserve the woman’s health.

Shocking. The law also contains a provision for civil suits to be brought against doctors who provide the banned procecures. Under section 1531 (c)(1):

The father, if married to the mother at the time she receives a partial-birth abortion procedure, and if the mother has not attained the age of 18 years at the time of the abortion, the maternal grandparents of the fetus, may in a civil action obtain appropriate relief, unless the pregnancy resulted from the plaintiff’s criminal conduct or the plaintiff consented to the abortion.

Look at the continued privileging of husbands in marriage (though notably not fathers in general). If married to the mother of the fetus, the father can bring a civil suit. There are two problems here: the first is that it asserts that husbands are harmed when their wives attend to their own medical care and, with their doctors, choose procedures with which the husbands disagree. Second, it privileges husbands over all other kinds of partners.

This is all the more frightening in light of other recent findings — findings that abstinance-only sex ed, for example, doesn’t work, even though Congress and the President continue to authorize money for advancing abstinance-only approaches. (Click here for the study — a 10 year examination of these programs.) Are we moving into an era where young people have less access to medically accurate information about pregnancy and disease and at the same time fewer outlets for dealing with unwanted pregancies?

This is an opportune moment to ask you to act: The REAL (Real Education About Life, S.972/H.R.1653) Act is again before Congress. It is being cosponsored by Senators Frank Lautenberg (D-NJ), Barbara Lee (D-CA) and Christopher Shays (R-CT). It was first introduced back in 2005. We need it NOW. Senator Lautenberg’s web site calls it “a bill that would authorize federal funds for states to offer comprehensive and medically accurate sexual education in their schools” and notes that

“there are three separate federal programs that fund abstinence-only-until-marriage programs, but no federal funding currently exists specifically for comprehensive sexuality education. Currently, states can only receive funding if they agree to teach abstinence-only-until-marriage while excluding information about the health benefits of contraception to prevent pregnancy and sexually transmitted diseases.”

Please support the REAL Act and demand that the government specifically fund comprehensive sex education.

• Use this link to support the REAL Act through the Pro Choice Action Network’s campaign, or,
• If you prefer to support the act by supporting a religiously-grounded campaign, you can choose this link from the Unitarian Universalists or this link from the United Church of Christ