Abortion Wrongs

        You’d think that a majority of Supreme Court Justices would be content with having climbed or kissed their way to the top of the judicial hierarchy, but, no -- they want to rule the medical profession too.  Yesterday, in upholding a congressional ban on a particular abortion procedure, regardless of the ban’s effect on women’s health, five Justices substituted their judgments about medical necessities for the judgment of the American College of Obstetricians and Gynecologists. 

        Gonzales v Carhart involved the constitutionality of a ban on intact dilations and extractions (deceptively labeled partial birth abortions,) which are occasionally used in the second trimester.  (According to rough estimates, a few thousand of these procedures are performed annually.)  The ban does not include an exception for preserving a woman’s health, and in upholding it, the Court ignored an extensive record of testimony by medical specialists confirming the occasional medical necessity of the banned procedure.   Pretending respect for precedent, the majority did not explicitly overrule Roe v Wade (that would have been impolitic,) but it did make this landmark guarantee of women’s right partly irrelevant by eviscerating its basic principles.  As the only woman on the Court, Justice Ginsburg, stated, “for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.”

        This partial, de facto overruling of Roe was distressing but no surprise.  Abortion rights advocates feared or knew it was coming.  In 2000, the Court had
invalidated a very similar ban enacted by the state of Nebraska, but then, last year, the deeply, socially conservative Samuel Alito replaced the moderately pro-choice Sandra Day O’Connor. 

        In 2003, Congress responded to the ruling against Nebraska’s abortion ban by passing a very similar federal ban, including an untruthful declaration that the banned procedure was never medically necessary, according to the medical consensus.  Justice Kennedy acknowledged that this declaration was factually inaccurate but held that there was medical uncertainty about the procedure's necessity.  In her angrily incisive dissent, Justice Ginsburg, suggested that even this “uncertainty” was manufactured: the doctors who testified that the procedures were never necessary lacked the expertise of the specialists who described the procedures as the safest alternatives for women in some cases. 

        But assume, for the sake of argument, that qualified doctors disagree about the need for resort to intact D & E’s.   Who should decide what procedures are medically necessary when doctors disagree?  Remarkably, the Court held that Congress is the decider, at least when a woman’s right to terminate a pregnancy is at stake.  

        It’s hard to imagine the Court allowing Congress to override the opinion of medical specialists about treatments for heart attacks or prostate cancer, but the Court has no apparent animus toward oncologists and cardiologists.  As Justice Ginsburg noted, however, it has obvious disdain for “obstetricians and gynecologists and surgeons who perform abortions,” referring to them “by the perjorative label ‘abortion doctor.’”  (Alongside Kennedy’s measured legal rhetoric, there’s the language of the street.)

        Writing for the majority, Justice Kennedy also made clear its low opinion of women, whom Kennedy and his four brethren treat like children whose legal choices may be limited for their own good. “ (S)ome 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,” Kennedy gratuitously declared (in language revealing his hostility toward all forms of abortion,) even while admitting that no reliable evidence supported this assertion.  Kennedy then speculates that women’s presumed regret about abortions are intensified if they subsequently learn that their doctors had performed intact D & E’s.   Lacking any factual support for this assertion, he simply describes it as “self-evident.”  

        Of course, as Justice Ginsburg points out, doctors could be required to describe the procedures they intend to use, in order to help insure that women make informed decisions.   Kennedy does not consider that option, assuming, instead, that women seeking abortions are so fragile emotionally that doctors will not regale them with graphic details. 

        All this reflects a strikingly anachronististic, visceral view of women as weak, uncertain creatures whom the state is obliged to protect, sometimes from their own misjudgments.  Justice Ginsburg’s apparent anguish over the majority’s ruling may reflect that fact it reverts to “shibboleths” about feminine frailty that she devoted so much of her career to combating.  Chief Justice John Roberts presented himself as a rational, objective, highly sophisticated legal jurist at his confirmation hearing, but he seems content to preside over a primitive Court.

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