Thursday, April 19, 2007

The Politics And Religion Of Abortion And The Supreme Court

It is hard to separate politics and religion from yesterday's U.S. Supreme Court ruling upholding a federal ban on so-called partial-birth abortions. A 5-4 vote in Gonzales v. Carhart reverses the outcome reached by the Court seven years ago in a case involving a very similar Nebraska statute criminalizing partial-birth abortion. In 2000 the Court in Stenberg v. Carhart found the Nebraska statute unconstitutional under Roe v. Wade and its progeny, in part, because it failed to include a health exception. It had seemed settled law that government may promote but not endanger a woman's health when it seeks to regulate methods of abortion under the health exception. "Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman's health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman's reproductive choices," Justice Ruth Bader Ginsberg wrote in her dissenting opinion.

So had the medical community's understanding of what constitutes a "partial-birth" changed over the last seven years since its ruling in Stenberg? Or was the difference in the Court's make-up the difference in this case? You cannot overlook the absence of Justice Sandra Day O'Connor, the first woman to sit on the Court, who joined the 5-member majority holding a similar partial-birth ban unconstitutional in Stenberg. And you cannot overlook the make-up of this new majority. It is comprised entirely of men, including Chief Justice John Roberts, Antonin Scalia, Clarence Thomas, Anthony Kennedy and the Court's newest member, Samuel Alito. All five men are Catholics. The Catholic Church's strong opposition to abortion is hard to overlook as not playing a factor in the Court's latest ruling. The four dissenting justices includes two Protestants, John Paul Stevens and David Souter, and two Jews, Stephen Breyer and Ruth Bader Ginsberg.

Not surprisingly, Chief Justice Roberts and Justice Alito both faced intense questioning during their recent confirmation hearings about their position on abortion. Their past records gave us every indication they both held strong views opposing abortion. Both, however, sought to reassure senators who might be inclined to vote against them on the abortion issue alone to cinch their respective places on the high court. Roberts assured senators the law on a woman's constitutional right to an abortion was "settled law." "When a decision is challenged and reaffirmed, it increases its value," Alito told senators when questioned about abortion. "The more times it happens, the more respect it has." If 'settled' means that it is a precedent that is entitled to respect . . . then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis," Alito assured the senators.

Were Roberts and Alito true to their word? It all depends on who you're asking. In Justice Ginsberg's mind, the majority in Gonzalez overturned its long-established precedent for requiring the health exception. "Though today's opinion does not go so far as to discard
Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of the rule of law and the principles of stare decisis. Congress imposed a ban despite our clear prior holdings that the State cannot proscribe an abortion procedure," Ginsberg opined.

Justice Kennedy, who wrote the majority opinion, offers little in the way of explanation for setting aside the precedent. In fact, his opinion reads as if the Court is being true to its prior precedents. "Stenberg has been interpreted to leave no margin of error for legislatures to act in the face of medical uncertainty," Kennedy laments. "A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription," he offers. "This is too exacting a standard to impose on the legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession."

The absurdity of the partial-birth law under scrutiny is the manner in which it attempts to split hairs in regulating abortion procedures. On the one hand, you have one procedure referred to as dilation and extraction where the physician inserts a vacuum instrument into a pregnant woman's cervix to extract a live fetus. This procedure, "dismemberment D&E", tears the fetus apart limb by limb within the cervix. That procedure remains legal. The federal law, however, makes it illegal to perform a procedure known as intact dilation and extraction, or intact D&E. This latter procedure differs from the former in that the live fetus is partially removed from the woman's cervix to complete the abortion procedure. This latter procedure is preferred by some practitioners because it causes less trauma to the woman's cervix than the other procedure, thereby making it a safer procedure, particularly for women with certain health conditions. The proponents of the partial-birth law claim the intact D&E procedure is "more gruesome" and "less humane."

As Justice Ginsberg explained, the expert testimony at trial supported the conclusion of the trial court judge that the health of the woman was a major reason for utilizing the intact D&E procedure. The purpose of the partial-birth ban is supposed to be based upon the government's legitimate interest in protecting the life of a fetus that may become a child. But as Justice Ginsberg observed, "The law saves not a single fetus from destruction." "And surely the statute was not designed to protect the lives or health of pregnant women," she added. "In short, the Court upholds a law that, while doing nothing to preserv[e] . . . fetal life, bars a woman from choosing intact D&E although her doctor reasonably believes [that procedure] will best protect [her]," she said.

As far as Ginsberg is concerned, the majority is substituting its own "moral judgment" about abortion in place of allowing the woman to make her own health care judgments. "Our obligation is to define the liberty of all, not to mandate our own moral code," Ginsberg reminded the majority quoting from Casey. And quoting from Lawrence v. Texas, the decision which struck down laws criminalizing same-sex sodomy, Ginsberg wrote, "Though for many persons objections to homosexual conduct] are not trivial concerns but profound and deep convictions accepted as ethical and moral principles, the power of the State may not be used to enforce these views on the whole society through operation of the criminal law."

Unfortunately, it appears the majority in Gonzales is more concerned about pursuing a moral agenda with an ultimate aim of overturning the long-standing constitutional right women have held to control their reproductive destiny. Instead of relying on expert testimony like the trial court did in reaching its conclusion the law was unconstitutional, the Court relied on congressional findings which were heavily biased in favor of persons morally opposed to abortion. As Ginsberg noted, none of the physicians whose testimony was concluded in the record had ever performed the abortion procedure in question and some of them had never performed any abortion procedure. "Congress arbitrarily relied upon the opinions of doctors who claimed to have no (or very little) recent and relevant experience with surgical dissenting
abortions, and disregarded the views of doctors who had significant and relevant experience with those procedures," according to the trial court. Summarizing her view of the majority's thinking, Ginsberg wrote, "This way of thinking reflects ancient notions about women's place in the family and under the Constitution ideas that have long since been discredited."

As a consequence of the Gonzales decision, you can bet abortion is going to be an even bigger issue in next year's presidential race and, if there are any new vacancies on the Court, any nominee will be dead on arrival in the Democratic-controlled Senate unless his/her record of support for Roe v. Wade and its progeny are well-documented. It's a sure bet there will be many more lawsuits. It is important to note that the Court's ruling in Gonzales was limited to a facial attack of the partial-birth ban statute. The majority made it clear the statute could still be attacked on constitutional grounds on an as-applied basis. The decision is also certain to invite more and more attempts to regulate abortion rights at the state level.

The reaction from anti-abortion legislators here in Indiana was predictable. "I think that was a good ruling," Sen. Pat Miller told the Star. "I think it is much more risky for a woman to have a partial-birth abortion than to have a baby,'' she added. Keep in mind Sen. Miller is a registered nurse by occupation. Does she honestly believe there are never any circumstances where a partial-birth abortion would be better for a woman's health than carrying a baby to full-term? Sen. Jeff Drozda said, "I think it's a very significant ruling." "This does help pave the way for states to begin to look at other legislation." "If states are looking to begin to restrict abortion . . . this does allow us to go back and look at what was considered an undue burden.'' Before his election to the Indiana Senate, Drozda made a living as a paid lobbyist for Indiana Right to Life.


Anonymous said...

Thank you, Gary, for the excelloent review. Stare decisis should've been the guiding factor here. Allito, in particular, lied during his confirmation process.

My general rule of thumb regarding Indiana law is: if Pat Miller is for it, I'm against it.

Wilson46201 said...

I'm glad to see this article here -- I'm surprised the usual crazies haven't been all over it denouncing you.

Jacob Perry said...

Gary, keep trying to convince us you aren't an anti-Christian bigot. I think it's working...

Funny that there's little, if any evidence that gruesomely dismembering a live child outside of the womb does anything to protect the health of a mother, but pro-abortion activists such as yourself and Ginsberg (perhaps the most liberal justice ever, not quite a balanced source to base your views on) refuse to accept that.

Is your hatred of Christianity such that it now forces you to take positions that support infanticide?

I suppose that next you'll be telling me that most Christians don't support my views.

Wilson46201 said...

The worst racists were always comforted by their firm belief that Biblical passages describing slavery supported their heinous views -- in fact, opposition to slavery (abolition) was considered anti-Scriptural.

The more it changes, the more it stays the same. The Devil can always quote Scripture to his own ends...

Anonymous said...

Good Lord Gary you've opened up the can of worms...

Christ has no place in this debate. Period. Ditto Allah. Or any other diety. Check that stuff at the door. This is raw and cold law, no more, no less.

This is government, Scribe. Not the Nazarene Assembly. Kindly keep your faith to yourself. And, regarding the particular procedure described, if you have no medical degree, and, as I suspect, you're not a female, you have no right to comment with any degree of authenticity. Run along and tell Eric and Micah that you tried. But you failed miserably.

That said, Allito lied. Pretty plainly. He's entitled. We should've known. Those Justice confirmations happened one year too early. Damn it.

And're unqualified to comment on the philosophical makeup of the Court, if you place Ginsberg as the most-liberal ever.

Feelin' a little overwhelmed?

Gary R. Welsh said...

Sorry, Scribe. I don't profess to be a medical expert on these procedures as you seem to do. I do know what the trial court's record found from expert testimony, and that expert opinion has not changed over the past 7 years. And experts in the field assert the intact D&E procedure is safer for some women with certain health conditions, such a heart problems, uterile bleeding and compromised immune systems. It is illogical to make one procedure illegal and the other not without a solid, health-related rationale. To carry the purpose behind this law to its natural extension, you would need to outlaw all abortions, which I think it this majority's long-term objective. Justices Stevens and Souder, by the way, are Republican-appointed judges and both sided with Ginsberg. Does that make them, along with the two Jewish members of the Court, "anti-Christian bigots", as you have chosen to call me?

Anonymous said...

Really nice summary of Carhart, Gary. Thanks for posting it.

And at the risk of adding some actual facts to this discussion, Scribe, Justice Ginsburg isn't even the most liberal justice on this Court. That distinction belongs to Justice Stevens. What's ironic is that when Justice Stevens joined the Court, he was considered to be a moderate, not a liberal. In the 30 some odd years he's served on the Court, Stevens' jurisprudence hasn't really become more liberal -- instead the Court has shifted to the right as conservative justices have been replaced their more liberal brethren.

Anonymous said...

This isn't about religion. Being pro-Choice isn't anti-Christian bigotry. This is about humane treatment of human beings. Tearing a living human being apart limb-from-limb isn't humane. I'm an agnostic, but I know barbarism when I see it.

Wilson46201 said...

The question then becomes defining what is a "living human being" doesn't it then? When is 'viability'? The fundies like Tom Delay even believe blastocysts are just Blasto-Americans, a tad short of deserving the right to vote and drive cars. Everybody agrees that living, healthy babies carried to full term cannot be killed. The point between sperm/egg and crying baby is what's argued about by reasonable people.

This new decision is bad in that it permits for the first time the government to force women to carry a pregnancy without regard to her own health. It might kill her and the baby born deformed and also dies but the government prohibits a doctor from helping either or both.

Humane? I think not!

Anonymous said...

Religion and legal precedent aside, I expect that those who are defending late term abortions would also be willing to step forward and defend a mothers right to "terminate" her premature baby who is on life support at the local NIC unit.

If the baby isn't alive in the womb until a pregnancy has reached full term, then logic dictates it obviously can't be alive at 7 months where it requires life support from an incubator. Correct?

That's the logic that's being applied here, isn't it?

If not, then please: Somebody step forward and explain why the 7 month old fetus in the womb who is dependent on his/her mother for life support is NOT alive, while the 7 month old pre-term baby who's dependant upon an incubator, feedings, and oxygen IS alive.

If you can justify killing one, you MUST be capable of justifying killing both. If you can't do that, you know exactly what it is that you are supporting, regardless of the system of political beliefs have led you to your conclusions.

Wilson46201 said...

Now let's bring up the question of why Shorebreak can't marry his horse. Another false slippery-slope.

Nobody anywhere is arguing for the need, necessity or humanity of giving a mother willy-nilly permission to terminate the life of a delivered baby which might be temporarily sustained on ultra-modern life support machines. Bringing up such hypotheticals is solely intended to muddy up the waters.

All but 2 Justices reaffirmed the basic right of choice as defined in Roe. The decision is about a particular, very-rare, late-term medical procedure and the right of government to intervene to control doctors.

Horse-marriage, infanticide and angel-censuses we shall leave to drunk sophomores and power-drunk politicos.

Gary R. Welsh said...

Shorebreak, your example presumes a third trimester abortion, which is not at issue here. The procedure is performed during the second trimester. Furthermore, the law still permits "the justified killing" of the fetus as you describe it as long as the D&E (dismemberment) procedure is used.

Anonymous said...

I don't think anyone advocates for late-term abortions do they? I am
an admitted pro-choicer, but the idea of aborting a late-term fetus just because you've suddenly decided you don't want it is to me abhorrent and unaccaptable.

But I just can't understand why there is objection to having an exception for the mother's health in ANY legislation regarding abortions.

Would the staunch anti-abortion folks prefer that a mother die rather than aborting a fetus if such a procedure was the only way to save the woman's life? Maybe I'm missing something, but this seems like an indefensible position to me.

Wilson46201 said...

Jeff: the idea of a flibberty-gibbet pregnant woman who cant decide whether to have an abortion or have her hair done is a false stereotype promulgated by the wingers. Late-term abortions are never done for trivial reasons. A woman doesnt carry the fetus so long and then decides on an abortion out of boredom or whatever without a damn good reason. Making such choices is horrendous.

Sadly, the emotionally-difficult "edges" of abortion are being nibbled away by the wedgewhacker politicos. Gay folk should be aware that hardcore "Right-to-Lifers" are also staunchly antigay. In many way, the anti- gaymarriage crowd is the same political tendency as the anti-abortion activists. The abortion issue is in some ways played out so anti-LGBT stuff is the latest leading-edge politics for the fundies.

Anonymous said...

So, if they see progress on the abortion front, they might leave the GLBTs alone? Sadly, I don't think they will go away, but they will feel that they've done their best for the day (week, month?) and settle back. But beware that there are always other wedge issues to come - immigration, property taxes and more.

Wilson46201 said...

Sadly, this outcome by the Supreme Court should not have been surprising. "Compassionate conservative" George Bush openly pledged to select Judges in the mold of Scalio and Thomas: he did. Elections have consequences.

Wilson46201 said...

Speaking of politics: Giuliani just flip-flopped on this issue. He just said he approved of the Supreme Court decision but in 1996 he critizized the Pope for criticizing Clinton for vetoing the PBA ban.

So where does Rudy stand: is he for or against PBA? Does it depend whether he's running for Mayor of NYC or President of the Confederacy (aka GOP primary voter base) ?