Category Archives: Gonzales v. Carhart

The New Anti-Abortion Law — Bad News For Women’s Health and Doctor’s Ethics

In an earlier post I discussed the Supreme Court’s analysis of the so-called Partial Birth Abortion Act, concluding that the Court’s decision to uphold the Act was intellectually dishonest and inequitable. This post is about the purposes of the Act, as described by Congress, and the Act’s probable consequences for the practice of medicine and the health of women.

Understanding the Act requires some minimal understanding about abortion procedures. (This explanation is more or less lifted directly from my earlier post on the Carhart decision.) The Act targets the procedure used in essentially all abortions taking place after first trimester and before viability. (Viability is the point in pregnancy when, given the current state of medicine, a premature infant has a fifty percent chance of survival. At present, viability occurs around the 23rd week.) The procedure is referred to as “dilation and evacuation” or “D&E”. A D&E is performed by first dilating the patient’s cervix for a period from a few hours to a few days. The physician then removes the fetus, placenta and related material from the uterus through the cervix, and out of the body. Often, the fetus must be removed from the uterus in pieces. Sometimes, though, the fetus can be removed from the cervix intact (called an “intact D&E” by the Court). Because the fetus is not destroyed during the intact D&E process, the physician must ‘kill’ (the word used in the Act), the non-viable fetus. The loaded term “partial-birth abortion” is thus an obvious mischaracterization of this procedure. The nonviable fetus cannot be “born,” either partially (whatever that might mean), or otherwise.

The Act makes it a crime for a physician to knowingly perform an abortion using the following procedure:

1. The physician removes the intact fetus from the woman’s body to a particular point:

In a head-first position, to the point where the entire head is outside the woman’s body;

in a breech (foot-first) position, where any portion of the fetus past the navel is outside the woman’s body; and,

2. The physician then takes an overt act that kills the fetus.

(This is my summary of the Act. The full Act can be found here.)

The Act provides no exception to preserve the health of the woman undergoing the procedure.

The Act won’t stop a single abortion from taking place. Justice Ginsburg noted during oral argument, “[W]e’re not talking about whether any fetus will be preserved by this legislation… It doesn’t preserve any fetus because you just [terminate fetal life] inside the womb instead of outside.” The US attorney defending the Act agreed with Justice Ginsburg. In other words, in order to be compliant with the Act, a physician must terminate the fetus’ life prior to delivery, even in cases where the physician believes it is safer for the mother to do otherwise.

Whether an intact D&E’ is considered medically necessary depends on a number of factors, including the age and health of the woman, especially if the woman has an underlying medical problem; the condition of the fetus; and the sophistication of the medical facilities available. Under the Act, a doctor is no longer allowed to make this decision. With the Act, Congress has overruled the the physician’s medical judgment, as well as her ethical obligation to provide the best possible medical care. Is appears the Hippocratic Oath has joined the Geneva Conventions as “quaint” obligations our government has decided can be ignored.

The trade-off Congress made in the Act and the Supreme Court appears hardly rational: Physicians must choose between following the law, on one hand, or providing the best possible care to preserve the health of the mother. What exactly has Congress achieved in return? Nothing, it seems. Abortions will not be reduced. But the Act will make abortions more dangerous and more difficult to obtain. Some physicians will likely withdraw from the practice of performing intact D&E’s rather than risk criminal charges. The health of some women will be harmed as a result, because they will not be able to obtain the best possible care. And, perhaps most troubling, those seeking to limit reproductive rights have established that their political agenda can override concerns about privacy, personal autonomy, and women’s health.

Tom Joaquin

TheFreeLance Continue reading

1 Comment

Filed under abortion, Advocacy, Info, and Activism, feminism, Gonzales v. Carhart, Health, News and politics, News..., pro-choice, public discourse, reproductive freedom

The Lie at the Heart of Gonzales v. Carhart

(My source for the quotations and information is Justice Kennedy’s majority decision and Justice Ginsburg’s dissent in Gonzales v. Carhart. These documents can be found here.)

Tom Joaquin
The Free Lance

By now, most people are aware of the summary holding in Gonzales v. Carhart: for the first time since Roe v. Wade, the Supreme Court left standing a law proscribing a particular abortion procedure without an exception to safeguard a woman’s health. Standing alone, this is a terrible result, but understanding the rationale of the decision was made is more frightening still.

In upholding the “Partial-Birth Abortion Act” (referred to here as just “the Act”), the Supreme Court’s new majority drew upon old lies about the emotional fragility of women, and the need to protect them from their own decisions. The Court used this old myth to bypass forty years of precedent safeguarding reproductive rights. The Court allowed Congress to place political values over best medical practice, and to put women’s lives at risk. The Court’s willingness to put aside legal precedent and scientific fact in this case may encourage more attacks on constitutional rights in the future.

Understanding Carhart requires some minimal understanding about abortion procedures. The Act targets the procedure used in essentially all abortions taking place after first trimester and before viability. (Viability is the point in pregnancy when, given the current state of medicine, a premature infant has a fifty percent chance of survival. At present, viability occurs around the 23rd week.) The procedure is referred to as “dilation and evacuation” or “D&E”. A D&E is performed by first dilating the patient’s cervix for a period from a few hours to a few days. The physician then removes the fetus, placenta and related material from the uterus through the cervix, and out of the body. Often, the fetus must be removed from the uterus in pieces. Sometimes, though, the fetus can be removed from the cervix intact (called an “intact D&E” by the Court). Because the fetus is not destroyed during the intact D&E process, the physician must ‘kill’ (the Court’s word), the non-viable fetus. The loaded term “partial-birth abortion” is thus an obvious mischaracterization of this procedure. The nonviable fetus cannot be “born,” either partially (whatever that might mean), or otherwise.

The Court notes that many physicians testify that trying to remove the fetus intact is sometimes medically necessary and always preferred medical practice. Removing fetal material in pieces take longer, thus extending the time the patient must stay under anesthesia. Many small pieces of material raise the risk of uterine damage, as well as the possibility of post-surgical complications resulting from failure to remove all of the material.

The line drawn separating intact D&E’s from all others appears to originate with Congress and the Court. In any case, Congress finds the “intact D&E” procedure distasteful. Well, perhaps more than just distasteful. According to the Court, Congress says the intact D&E is a “gruesome and inhumane procedure that is never medically necessary and should be prohibited”.

Congress, however, cannot constitutionally pass a law with the primary goal of prohibiting an abortion procedure. As Justice Ginsberg points out in her excellent dissent, Congress must consider all that troublesome precedent about a woman’s right to choose, and the idea that a woman’s decision to bear a child is central to her “‘dignity and autonomy,’ her ‘personhood,’ ‘destiny,’ and her ‘conception of her place in society’”. According to over forty years of developed precedent, a law cannot constitutionally place “a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

But there is a loophole: Congress can pass a law that makes it more “difficult and expensive to obtain an abortion,” as long the law’s primary purpose is not specifically to interfere with the right to have an abortion. For the Act to pass constitutional muster, Congress needs a convenient fiction about the Act’s purpose. Fortunately for Congress, the new majority in the Court is happy to oblige.

According to the Court, the Act is intended to protect “mothers,” who are emotionally sensitive and liable to regret their decision to have an abortion. There are no “women” in the Carhart decision. There are only ‘mothers, a group that includes women whose pregnancies were terminated.

The Court begins by adopting nostrums from Congress: “Respect for human life finds an ultimate expression in the bond of love a mother has for her child.” Because of the importance of this “bond of love,” the Court decides that, although there is “no reliable data to measure the phenomenon, it seems unexceptional to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of self-esteem can follow.”

The Court then supposes, again without any factual support, that “some doctors may prefer not to disclose precise details of the means that will be used” for performing the abortion. The physician’s postulated failure to be frank about the procedure can compound already existing emotional difficulties: “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 human form.”

This overheated language distracts from real problems with the Court’s argument. First, the story about the emotional damage that can result from having had an abortion just isn’t true. In her dissent, Justice Ginsburg provides a long list of studies from respected sources debunking the “idea that having an abortion is any more dangerous to a woman’s long-term mental health than delivering and parenting a child that she did not intend to have.”

Secondly, if a woman does come to regret her decision to terminate her pregnancy, is it likely she would prefer to learn her abortion was performed by removing the fetus from her uterus in pieces, or that it was removed intact, the safest possible method

Finally, wouldn’t it make more sense simply to require physicians to inform women of the abortion method to be used along with other information currently required by law to be provided the patient?

The Court doesn’t discuss these issues because the truth is less important than upholding the Act and setting the stage for future cases. The old argument about protecting the life of the unborn doesn’t need to be raised anymore to attack abortion. The new argument that abortion should be done away with is based upon the offensive lie: Women are emotionally fragile, and might decide on abortion, even though abortion separates them from participating in the “ultimate expression” of “respect for human life.” They may later come to regret that decision, leading to emotional illness. Learning about how the abortion was carried out will further damage these women emotionally. Therefore the practice must be eradicated.

This argument is sufficient to prohibit one method of performing abortions. Is there any reason why it won’t work to ban others?

 

This is the first of two posts discussing the Carhart case. In the next post, I’ll discuss the mechanics of the Act itself, how it allows Congressional opinion to overrule science, and the danger this poses to the health of women.

3 Comments

Filed under abortion, activism, Advocacy, Info, and Activism, feminism, Gonzales v. Carhart, Health, inequality, News and politics, News..., pro-choice, public discourse, reproductive freedom

The Supreme Court thinks Congress knows more about women’s health than does the American College of Obstetricians and Gynecologists

And: Why I continue to be grateful for the lessons I learn from my mother

My mother, from whom I learned so much about social justice, freedom of thought, women’s potential, and the need to stand up for those who can’t stand up for themselves, sent the following news release from the American College of Obstetricians and Gynecologists. (The addition of bold and italic styles are mine, just for emphasis.)

ACOG NEWS RELEASE

For Release: April 18, 2007
Contact: ACOG Office of Communications
  (202) 484-3321
  communications@acog.org

ACOG Statement on the US Supreme Court Decision Upholding the
Partial-Birth Abortion Ban Act of 2003

Washington, DCDespite the fact that the safety advantages of intact dilatation and evacuation (intact D&E) procedures are widely recognized—in medical texts, peer-reviewed studies, clinical practice, and in mainstream, medical care in the United States—the US Supreme Court today upheld the Partial-Birth Abortion Ban Act of 2003.

According to the American College of Obstetricians and Gynecologists’ (ACOG) amicus brief opposing the Ban, the Act will chill doctors from providing a wide range of procedures used to perform induced abortions or to treat cases of miscarriage and will gravely endanger the health of women in this country.

“Today’s decision to uphold the Partial-Birth Abortion Ban Act of 2003 is shameful and incomprehensible to those of us who have dedicated our lives to caring for women,” said Douglas W. Laube, MD, MEd, ACOG president. “It leaves no doubt that women’s health in America is perceived as being of little consequence.

“We have seen a steady erosion of women’s reproductive rights in this country. The Supreme Court’s action today, though stunning, in many ways isn’t surprising given the current culture in which scientific knowledge frequently takes a back seat to subjective opinion,” he added.

This decision discounts and disregards the medical consensus that intact D&E is safest and offers significant benefits for women suffering from certain conditions that make the potential complications of non-intact D&E especially dangerous. Moreover, it diminishes the doctor-patient relationship by preventing physicians from using their clinical experience and judgment.

“On behalf of the 51,000 ACOG members who strive to provide the very best possible medical care to the women we serve, I can only hope that in the future, science will again be at the core of decision-making that affects the life and well-being of all of us,” said Dr. Laube.

# # #

The American College of Obstetricians and Gynecologists is the national medical organization representing over 51,000 members who provide health care for women.

~~~~~~

She sent this as part of a comment on a different post, and I asked her if I could reproduce some of that here. She agreed.

What I was most touched by in her comment was that she seemed to be identifying a concern that goes beyond this monumental decision and points to a problem with so much of our approach to social policy as a nation: we seem to be unable, as a country, to act compassionately. She fears that the rhetoric on both sides of this issue miss, sometimes, the concerns of people like her who feel pain at the thought of the loss of an aborted baby and who also feel pain at the fate of unwanted children who are born into situations over which they have no control.

Her comment points to problems that our abortion debates in the US so rarely touch on with the depth they require: that our economic system and political system are not oriented toward being supportive of working families. Our lack of universal health care, of living wages, and of inclusive, family-friendly workplace policies for example, put pregnant women under strains that they should not have to face and cause families to suffer financial hardship and the interpersonal stresses that come from that. Politicized health care policy keeps effective contraception out of the hands of people who need it most resulting in more unwanted pregnancies all while restricting women’s ability to deal with them.

We in the US have become well-socialized into a system that pits against each other groups that actually share many common interests, and does so in a way that a privileged few benefit while the rest of us fight each other. That so many feel so threatened makes it harder for us to feel compassion for one another. And without that compassion it is hard to imagine policies that can ease the conflicts. It is a truly dangerous cycle.

5 Comments

Filed under abortion, activism, Advocacy, Info, and Activism, culture, Gender, Gonzales v. Carhart, Health, News and politics, pro-choice, public discourse, sex, sex and health

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.

4 Comments

Filed under abortion, activism, Family, feminism, Gender, Gonzales v. Carhart, Health, life, News and politics, pro-choice, public discourse, sex, sex and health, sex education

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.

1 Comment

Filed under abortion, activism, Education, Family, feminism, Gender, Gonzales v. Carhart, Health, life, News and politics, pro-choice, public discourse, reproductive freedom, sex, sex education