Tuesday, February 21, 2006

Partial-Birth Abortion Comes to the Supreme Court

I'm not yet sure what to make of this, as I can't claim to know enough yet about the contentious detail:
The Supreme Court said Tuesday it will consider the constitutionality of banning partial-birth abortions, teeing up a contentious issue for a new court already in a state of flux over privacy rights.

The Bush administration has pressed the high court to reinstate the federal law, passed in 2003 but never put in effect because it was struck down by judges in California, Nebraska and New York.
I am against partial-birth abortion, and I do believe that most of this country is as well. In case you don't know what it is, here's a short explanation:
The federal Partial-Birth Abortion Ban Act prohibits a certain type of abortion, generally carried out in the second or third trimester, in which a fetus is partially removed from the womb, and the skull is punctured or crushed.
The contention of the people fighting against this law is that it leaves out a certain important detail:
Justices had been split 5-4 in 2000 in striking down a state law, barring what critics call partial birth abortion because it lacked an exception to protect the health of the mother.
This is a very serious concern. The proponents of the law argue that such a thing never applies:
The federal law in the current case has no health exception, but defenders maintain that the procedure is never medically necessary to protect a woman's health.
But is this true?
The case that will be heard this fall comes to the Supreme Court from Nebraska, where the federal law was challenged on behalf of physicians. Doctors who perform the procedure contend that it is the safest method of abortion when the mother's health is threatened by heart disease, high blood pressure or cancer.
It seems to me that this case will likely be decided on whether the Court feels the procedure will or won't apply to cases in which the mother's life would be threatened. However, there is something I don't understand at all about this story: Why can't the law simply add in a clause protecting the mother's ability to have an abortion if it is threatening her health, and it can be determined that this is in fact the case? It seems difficult to think that people could somehow abuse this: I can't imagine people being able to successfully fake cancer or heart disease, and high blood pressure is something that can easily be tested.

To me, there are two ways in which this should play out:
1) The Court determines that the claim is correct, and that the specific partial-birth abortion technique in this law is never needed in cases where the mother's health is threatened. Partial-birth abortion: Banned.

2) The Court disagrees, and feels that there are certain cases in which the mother's safety would be at risk, and does not ban it. The government takes those specific examples, adds protections in those cases into the law, and try again. The end result should be simple. Partial-birth abortion: Banned.
Am I missing something?

Technorati tags: , , , , .


  1. Republicans don't want the ban to succeed. A majority of Americans oppose so-called partial-birth abortion except in the cases of rape, incest, and when the mother's health is in danger. A majority of Americans support early-pregnancy abortion. Thus, the Republicans can only win votes on the abortion issue as long as so-called partial-birth abortion is legal. In other words, it's a classic wedge issue.

    So, they have a conundrum. If they succeed in banning it, they lose their ability to win votes by "fighting" for a ban. If they don't try, they lose votes for not trying. So, they pretend to try, knowing that the ban as worded is unconstitutional. They then get to blame "activist judges," liberals, etc. for keeping so-called partial-birth abortion legal.

  2. JA - Interesting approach. I don't think that's the case, but in a sense, it works. Theoretically, you could have used another argument against abortion, that of the "Roe Effect".

    Nevertheless, though it does answer my question, I don't believe it to be the case. Too conspirational for me. :) I would be more likely to believe that the driving forces believe abortion should not apply even when it is dangerous to the mother, as some hold this to be true. But, I don't think (?) that Bush does, so that doesn't work either.

  3. Sorry. Make that "another argument the GOP would have against abortion..."

  4. Charles Krauthammer who is pro-choice and a doctor by training has claimed that
    1) partial birth abortion carries many risks
    2) at that point in the pregnancy there is no advantage to such a procecure and
    3) generally considers it murder.
    And while I don't have the numbers Gallup shows that upwards of 80% of Americans are against third trimester abortions. (There was no separate category for partial birth abortion.)
    Americans, as a whole, are not as permissive about abortion as the pro-abortion forces would claim. Only first trimester abortions are favored by a majority. And reasonable restrictions are also not considered to be infringing on "abortion rights," again by a majority of Americans, though not necessarily newspaper editors.

  5. David - absolutely. Is Krauthammer's opinion the majority one? I wonder if he'll testify before the Court...

  6. IIRC the problem with putting in a clause protecting the health of the mother is that courts have read it broadly to include psychological health and even financial health. The clause then negates the ban. I might be wrong though.

  7. Right - that's why I think a specific clause would work better.

  8. OK, here we go:

    1. The word is "conspiratory" not "conspirational."

    2. I'm personally not a fan of abortion. I'd always rather see a babay be born. But I don't think the government has any place in telling a woman what she can and can't do wih her body.

    3. Just because the majority of Americans think one way - that doesn't make it right.

    4. President Bush is the one asked the court to take the case. He's clearly out for blood (pardon the pun) and has his agenda. He doesn't want only to stop Partial-birth abortion, he wants to end it all - and this is the first step.

    5. The three other judges who struck down the law all said it was specifically because there was no safeguard against extreme circumstances (from sexual violence, etc.)

    And on a side note, it's funny to me that the folks who want small government have no problem with it getting small enough to fit in our bedrooms.

  9. 1) Heh. :) (blushes) Whoops.

    2) Ever? I disagree with that.

    3) Depends what you mean. It doesn't make it wrong, either. If 80% think it's wrong to abort in the 3rd trimester, I think that says a lot.

    4) Completely disagree. That he went after an item that almost the entire country agrees with, most importantly himself, is just doing what makes sense as President. Each stage of abortion he knocks down makes it successively harder to knock down the next: When you argue that "3rd trimester PBA's are dangerous and wrong!", it sounds as if it's excluding that which isn't one of those two. It would be near impossible to convince those who only had a problem with that to then be against abortion earlier and in a safer fashion. Sorry.

    5) Again, we'll have to see if the SC agrees. If they do, put in a clause.

    6) That's empty rhetoric: There are times when the government is necessary, and times when it is not. For the economy, the less interference the better. For security, obviously more is necessary. To just say "small government people want this, but it's not small government!" is an attempt to distract attention away from the issue at hand. The same would work the other way: "Oh, all of a sudden they don't want the government involved."

  10. 'read it broadly to include psychological health and even financial health. The clause then negates the ban.'

    You have just made my point as to why Orthodox Jews must oppose this particular ban. Halachah does not distinguish between physical and mental health. (One more area in which halachah was thousands of years ahead of secular knowledge.) Joe Lieberman correctly voted against it.

    What is really bizzarre about this one is that the Republicans didn't include a health exception by claiming in the bill that the procedure is never needed. Thus the Congress becomes your doctor.

  11. Robbie!! HA! :)

    My mother e-mailed me - it is in fact conspirational, and conspiratory was wrong. Woohoo!!

  12. Charlie - how do you know it doesn't distinguish between physical and mental health? And how would that be determined?

  13. 2 points
    1) The pro-abortion crowd claims that a majority of Americans support their view of an unfettered right to abortion. My point in mentioning the Gallup polls (once upon a time you could get them for free) was to show that that's not the case.
    2) Saying that partial birth abortion is not necessary might is accurate. Back 1997, Charles Krauthammer, who is usually pro-choice, wrote an op-ed against partial birth abortions. He quotes a doctor who performs them who answered that the main reason to perform them is to make sure that the baby is dead.