Health Exception? Who Needs It?
My thoughts on the Supreme Court’s just-released decision upholding a ban on partial-birth abortion, even when deemed necessary for a woman’s health.
Ironically, this may just reduce the number of wanted pregnancies. Few to no women would just randomly decide to abort 26 weeks after they became pregnant. I suspect most late-term abortions occur when a woman who wanted to bear the child discovers medical complications during pregnancy that threaten her life or health. In this situation, I firmly believe that doctors, not politicians, should decide what procedure is safest and most effective for women. When they can’t do that, they raise the medical risks of pregnancy for every women. With this ruling, women’s bodies become forfeit to the state after a certain period–they can be scarred or maimed for life for no medically legitimate reason. In such a context, it’s entirely rational that a woman who otherwise might want to bear a child, but is afraid she might develop medical complications, will simply avoid it.
To be clear: I think that legislatures can generally ban abortion after viability for a fetus. And most, even prior to this ruling, had such bans, and they did not need this ruling to be enforcable. What this ruling did was make it so that legislatures need not add even a health exemption. They can legally mandate that women run a higher risk of being maimed. And that’s wrong.
24 Responses to “Health Exception? Who Needs It?”
Why not just post the NARAL talking points?
I only ask as I don’t see any quotes from, for example, Kennedy’s actual opinion.
This is a great day for the pro-life movement. We have Senator Sam Brownback to thank for rejecting the Miers nomination and getting Justice Alito on the court.
Because if I just posted NARAL’s stuff, you wouldn’t feel compelled to read me. :-p
To be fair, I only made one quote from Ginsburg’s opinion, making my quote score slanted in favor of the dissent by a score of 1-0.
Nonetheless, ask and you shall receive. The update to the post now includes a quote with internal quotes to Kennedy’s opinion. Not cast in a positive light, but tragically, I’m an opinionated individual, not a news aggregator.
RH
Why not just admit you hate women being able to fight to save their fertility and possibly their lives when a wanted pregnancy goes tragically wrong? You, Sir, are toasting the removal of one option. The fact that the health of the mother was thrown out as a factor makes me glad I have sons.
http://www.texaskaos.com/showDiary.do?diaryId=3116) crossposted from thread below. Sorry if you do not like sad, complicated cases, apparently, they happen.
“Few to no women would just randomly decide to abort 26 months after they became pregnant.”
Do you mean 26 weeks? A woman pregnant for 26 months would be dead, as would her unborn child.
*blush*.
Corrected.
A lot of this boils down to the definition of women’s health. Pro-lifers think that doctors interpret “not wanting to have a baby” as a sign of “mental anguish” and thus a threat to the mental health of a woman. Consequently, any woman who choices to have an abortion, including at 26 weeks, is, by definition, of ill health. There’s certainly a legitimate point here: are these procedures only used because of an actual PHYSICAL health threat to the woman? I think the law should separate out the physical from the mental health issue. Perhaps it could even define the sorts of physical conditions that would allow for an exception. If this procedure is so rare, the law should be able to find a middle ground.
Listening to NPR today I heard a young woman who called in because she wondered if the decision would have affected her should her doctor have recommended a D&X. She had to end a pregnancy in her second trimester when a severe chromosomal abnormality was discovered after an amniocentesis. The answer is yes. Even if her doctor had believed that a D&X was the safest thing for her she now couldn’t have one. As far as Kennedy’s decision is concerned I couldn’t care less what he said. There is medical opinion on both sides of the issue and he and his fellow Republican justices decided to listen to that testimony that will make their fellow Republicans happy.
Excellent post David. It’s good to see some sanity still in the world.
What’s wrong here is your interpretation, David. The reason that the SCOTUS majority didn’t feel that it was necessary for a health exemption is because the plaintiffs failed to prove that there was ever a medical need for this procedure over alternative procedures that are not banned. Please stop misconstruing this as though the court has overturned the principle of the right to abortion in cases where the mother’s health is at stake.
And David is saying that they’re wrong.
And we support women’t rights in the Muslim world. What irony!
C Stanley:
No, that’s definitely not true. As Ginsburg made clear in her dissent, a substantial portion of the medical community believes that D&E is the safest form of abortion in certain situations. All the trial courts found that the medical community slanted sharply in favor of allowing D&E–the court gave little to no reasoning on why their findings of fact should have been cast aside.
But moreover, even if they didn’t make hard proof, in Carhart, the court ruled that given real medical ambiguity, legislatures cannot take away what a doctor believes is the safest medical option for a women. This case obliterated that eminently reasonable doctrine. The Court completely overlookedthe opinion of the majority of qualified medical professionals in making its determination, and that will lead to women not having the safest medical treatments available.
As JS points out, I would guess most of these procedures are performed when serious congenital defects are missed earlier in a pregnancy. The cases of Emilio Gonzales and Sun Hudson warrantan abortion at any trimester. The abortion is preferrable compared to the pain of a short term painful existence for the baby and family. The family and doctors should be able to decide, not cynical politicians. The Billy Donahues aren’t there to support these two families, he’s on a soap box gain media attention on cable with Billo.
http://forums.plentyoffish.com/datingposts7043411.aspx
http://www.delrionewsherald.com/wire.lasso?report=/dynamic/stories/F/FUTILE_CARE
These two birth result in a death setence thanks to W’s Futile Care law.
Jim,
Before you go off on the ususal partisan politics rant, check the voting record of your Majority Leader on this very issue….not very long ago either.
Well, David, your statement that my assertion is ‘definitely not true’ is only backed up by framing the discussion in such a way that what Kennedy says is not to be believed but what Ginsburg says is to be accepted as unassailably true. What Kennedy says is that the burden can’t be for all doctors to agree that a procedure has acceptable alternatives because if that were the legislative burden then no restrictions would likely to be possible because some physicians will defend their preferred practices. And those who are arguing that all D&E procedures are now barred are incorrect (most D&E procedures are not done with the intent on delivering a live fetus to the vaginal canal and then causing death as in the case of the now prohibited procedure, and the language defines it clearly that way); and in fact, even in cases where an intact D&E might have less risk to safety it is still possible for the procedure to be performed after a fatal injection is given to the fetus in utero:
> Why not just post the NARAL talking points?
“It’s the hierarchy-patriarchy!” [sic]
Liberal political “legal” arguments can be made all day, but they fail. There’s no need for this procedure and most find it abhorrent.
> This case obliterated that
> eminently reasonable doctrine.
Translation: It defies the politics you want to see as “law.”
It defied 35 years of solid precedent, including a directly onpoint case less than 10 years ago. And you’re accusing me of substituting politics for law?
And C., the reason I’m inclined to believe Ginsburg is that every single trial court compiled findings that concurred with her position. Nobody outside Justice Kennedy and his cohorts thought that the medical issue swung in congress’ favor. There is simply no explanation for why there would be virtual unanimity among the courts that the medical evidence was in favor of having this procedure available, aside from that actually being the case. This isn’t he said/she said Kennedy versus Ginsburg–this is he said versus she and she and he and he and she and he and she said. And given that, I think its eminently reasonable even in cases of ambiguity to default to doctors, not politicians.
Well, David, Kennedy explained why legislators defaulting to doctors 100% of the time would violate the Casey decision which allows for reasonable restrictions. The court majority isn’t claiming that there is 100% consensus among the medical community, just that there wasn’t compelling evidence from those who said that the procedure is necessary for safety of women that would override the interest of the state that was set forth in Casey.
You may disagree with that, but at least do your readers the service of explaining the majority position and why Ginsburg (and you) don’t believe that it is good exercise of jurisprudence. By dismissing the majority opinion out of hand, you really are just giving the extreme pro-life talking points.
Uh, oops…that was meant to be “pro-choice talking points”, of course.
The problem I see with health exceptions to any law regulating abortion is that Doe v. Bolton defines “health” so broadly as render any such law meaningless.
We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman. [Emphasis added.]
Some critics of Gonzales v. Carhartassert that there is too much emphasis on the actual intact D&E procedure. I believe this was done to represent the party to this case with the smallest voice and the most to lose.
One such example of this (quoted directly from the majority opinion) is the “description from a nurse who witnessed the same method performed on a 26-week fetus and who testified before the Senate Judiciary Committee�:
“ ‘Dr. Haskell went in with forceps and grabbed the baby’s legs and pulled them down into the birth canal. Then he delivered the baby’s body and the arms—everything but the head. The doctor kept the head right inside the uterus… .
“ ‘The baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.
“ ‘The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out. Now the baby went completely limp… .
“ ‘He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.’ �[Emphasis added.]
Is there anyone who would care to venture an opinion as to where in the penumbras and emanations of the Constitution such a right exists?
In her dissent Justice Ginsburg described the decision as “alarming.” I wonder how she would characterize what the 26 week fetus had to endure?
Is there anyone who would care to venture an opinion as to where in the penumbras and emanations of the Constitution such a right exists?
[Crickets chirping.]
I guess not.