I’ve just learned that the Supreme Court upheld the national “partial birth” abortion ban passed by Congress in 2003. The five justice who made up the majority are Scalia, Thomas, Roberts, Alito, and Kennedy.
The repercussions of this ruling will depend a great deal on how the various states interpret the ban. Physicians have complained that the ban, as it is worded, could be interpreted to ban just about any type of abortion. If that’s the case, I think this will bring about a huge public backlash against the Fetus People, which is something I don’t think they realize.
On the other hand, if it is interpreted to ban only the dilatation and evacuation (D&E) procedure, which is commonly used in the second trimester, then nearly 90 percent of abortions, performed in the first trimester using other methods, would not be affected. And second trimester abortions would still be performed, but by other means that pose greater risk to women. Even so, abortions performed by physicians in sterile environments would not likely result in the carnage that a return to “back alley” abortions would cause. It’s hard to know if a ban on D&E only would create much of a public stir at all.
But I think we can count on conservative state legislators to go for the more expansive interpretation of the ruling. I’m sure that many Red State politicians are busily writing up new and more oppressive abortion laws that go beyond today’s ruling even as I keyboard, and I strongly suspect this ruling has just opened a big can of damn ugly worms.
The American College of Obstetricians and Gynecologists (ACOG) filed an amicus brief in support of the challenge to the ban. I’m going to paste an ACOG press release about the brief here, because I think it explains the issues clearly.
For Release: September 22, 2006
ACOG Files Amicus Brief in Gonzales v. Carhart and Gonzales v. PPFA
Washington, DC — The American College of Obstetricians and Gynecologists (ACOG) has filed an amicus brief in support of the challenges to the federal Partial-Birth Abortion Ban Act of 2003. The United States Supreme Court will hear arguments on November 8, 2006, in two cases that dispute the constitutionality of the Act, which was passed by Congress and signed into law by President Bush in November 2003. The ban has not taken effect because of the legal challenges.
Almost immediately after the Act was signed into law by President Bush, physicians and medical groups filed three separate lawsuits challenging it in federal courts in New York, Nebraska, and California. In each case, the court ruled the Act unconstitutional and the decision was upheld on appeal. The government subsequently sought review of two of the cases by the US Supreme Court: Gonzales v. Carhart (Nebraska) and Gonzales v. Planned Parenthood Federation of America (PPFA) (California). Any further appeals in the New York case would be initiated after the US Supreme Court rules on the Nebraska and California cases. [I assume this is moot now — maha]
“The courts were correct each time they struck down such ill-conceived and unconstitutional restrictions on physicians’ ability to provide patients with the safest possible medical care,” according to Douglas W. Laube, MD, MEd, president of ACOG.
The Act purports to ban so-called “partial-birth abortions;” however, “partial-birth abortion” is not a medical term and is not recognized in the field of medicine. The Act defines “partial-birth abortion” in a way that encompasses a variation of dilatation and evacuation (D&E), the most common method of second-trimester abortion, in which the fetus remains intact as it is removed from the woman’s uterus. The Act’s definition also encompasses some D&E procedures in which the fetus is not removed intact.
Over 95% of induced abortions in the second trimester are performed using the D&E method. The alternatives to D&E in the second trimester are abdominal surgery or induction abortion. Doctors rarely perform an abortion by abdominal surgery because doing so entails far greater risks to the woman. The induction method imposes serious risks to women with certain medical conditions and is entirely contraindicated for others.
The intact variant of D&E offers significant safety advantages over the non-intact method, including a reduced risk of catastrophic hemorrhage and life-threatening infection. These safety advantages are widely recognized by experts in the field of women’s health, authoritative medical texts, peer-reviewed studies, and the nation’s leading medical schools. ACOG has thus concluded that an intact D&E “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of the woman, and only the doctor in consultation with the patient, based on the woman’s particular circumstances can make that decision.” [ACOG Statement of Policy on Abortion (reaffirmed 2004)]
ACOG objects to the 2003 federal ban because it exposes women to serious, unnecessary health risks and does not include any exception to protect women’s health. In addition, ACOG objects to the Act’s vague and overly broad terms because doctors will be unable to determine whether their actions are prohibited by the Act. As a result, the Act will deter doctors from providing a wide range of procedures used to safely perform induced abortions.
“The term ‘partial-birth abortion’ was purposely contrived to be inflammatory,” said Dr. Laube. “While proponents of this law say that it addresses a particular procedure, it has been specifically written to describe and encompass elements of other procedures used in obstetrics and gynecology.”
In 2000, ACOG filed an amicus brief in Stenberg v. Carhart on behalf of the challengers to a Nebraska law that attempted to ban so-called “partial-birth abortions.” The US Supreme Court struck down the Nebraska law, ruling that it violated the US Constitution by failing to provide any exception “for the preservation of the health of the mother” and being so broadly written that it could prohibit other types of abortion procedures such D&E, thereby unduly burdening a woman’s ability to choose to have an abortion.
“Decisions involving pregnancy termination are among the most serious and personal that a woman will make in her life. As the medical specialists in women’s reproductive health, we will continue to fight attempts to criminalize legitimate medical procedures,” said Dr. Laube.
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The American College of Obstetricians and Gynecologists is the national medical organization representing over 51,000 members who provide health care for women.
Justice Ruth Bader Ginsburg, speaking in the courtroom for the dissenters, called the ruling “an alarming decision” that refuses “to take seriously” the Court’s 1992 decisions reaffirming most of Roe v. Wade and its 2000 decision in Stenberg v. Carhart striking down a state partial-birth abortion law.
Ginsburg, in a lengthy statement, said “the Court’s opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman’s health.” She said the federal ban “and the Court’s defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women’s lives. A decision of the character the Court makes today should not have staying power.”
That final comment, concluding remarks delivered without an open display of emotion, clearly was a suggestion that the ruling might not survive new appointments to the Court — just as the arrival of Chief Justice John G. Roberts, Jr., and, especially, Justice Samuel A. Alito, Jr. — had led to the switch she claimed had come about this time. Ginsburg pointedly noted that the Court is “differently imposed that it was when we last considered a restrictive abortion regulation” — in Stenberg in 2000.
In the course of her dissenting opinion, Ginsburg accused the majority of offering “flimsy and transparent justifications” for upholding the ban. She also denounced the Kennedy opinion for its use of “abortion doctor” to describe specialists who perform gynecological services, “unborn child” and “baby” to describe a fetus, and “preferences” based on “mere convenience” to describe the medical judgments of trained doctors. She also commented: “Ultimately, the Court admits that ‘moral concerns’ are at work, concerns that cdould yield prohibtions on any abortion.”
I have a lot of questions about today’s ruling. For example if the Court has affirmed an abortion law that doesn’t have a “life and health of the mother” clause, what does that do to Roe v. Wade?
And may I say that if even one woman dies or is needlessly impaired because the government has “tied the hands” of physicians, it’s an injustice.