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.
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.
- 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.”
- 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.
- 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.