SCOTUS, you displease me mightily.

April 19, 2007 · Filed under Humorless Feminist, Law, Poli-ticklish, Pro-choice

Yesterday, as I’m sure you’re all aware by now, the Supreme Court of The United States voted to uphold the “Partial Birth Abortion Ban Act of 2003,” previously struck down by two circuit courts. In taking this action, please note, the Court did not explicitly limit post-viability abortion – it simply decided that one type of medical procedure – the inadequately defined “intact D&E,” was “gruesome and inhumane,” and “never medically necessary,” because it involves puncturing the skull of the fetus while the body remains intact. The more common method, dismemberment of the fetus in utero, was deemed acceptable. Both of these procedures are used for pre- as well as post-viability abortions.

As Ema eloquently said, regarding a brief she read earlier in this case:

If your argument–as articulated by Rep. Steve Chabot (R-OH), a sponsor of the federal ban–is that you want to ban a medical procedure because it’s barbaric and gruesome and inhumane, on what basis do you declare an intact delivery barbaric and gruesome and inhumane, but one involving dismemberment, not so much?

And since I’m asking questions: Why is a D&E barbaric and gruesome and inhumane, while bleeding out from a torn cervix is civilized and acceptable and humane?

From the same post (italics are quotes from the brief):

(A) the government wishes to ban a medical procedure but fails to define it (The uncontested evidence presented in the New York trial established that any D&E or induction…may fall within the definition of “partial- birth abortion” contained in the Act.)

(B) the government seeks to stigmatize one [procedure] as aberrant [intact D&E] and to embrace the other as “standard [D&E involving dismemberment], despite the fact that whether the fetus is dismembered or removed intact, the physician must reduce the size of the skull to complete the delivery, and that both variants are used at the same point in pregnancy.

While I’m quoting, I honestly don’t feel I can say it much better than Scott Lemieux presciently did here, back in November:

If the Court overturns the health exemption [ed: which it did], this will deal a body blow to Casey, giving states hostile to abortion much more leeway to legally harass doctors and patients in ways likely to have a chilling effect on abortion providers. (Remember that D&X abortions are not limited to post-viability abortions.) If the Court gives a free pass to legislatures that make bogus medical claims to evade the health exemption requirement, as the drafters of Federal Partial-Birth Abortion Act did, this will have the same effect with an extra layer of dishonesty added on top. (It will also send a signal to legislatures that the Court will not scrutinize the motives and consequences of abortion regulations with any seriousness, further diluting the “undue burden” restriction.) If, alternatively, the Court upholds the law pending “as applied” challenges, this will make challenges to abortion laws much more difficult and expensive, exacerbating the class inequities already present in abortion access.

And irrespective of the precise rationale the Court ends up citing, the larger problem is that, because the distinction between D&X abortions and any other procedure is wholly arbitrary, legislatures can invent further distinctions and continue to tie the hands of abortion doctors. As Eve Gartner, the lawyer representing Planned Parenthood, put it during the oral argument, “to allow such an expansion of pre-viability abortions that can be banned would set the stage for continued legislative efforts to ban other iterations of the classic D&E method of abortion, until truly there would be nothing left at all of Casey‘s holding that it is unconstitutional to ban second-trimester abortions.”

Partial-birth abortion bans involve inventing a scary-sounding but scientifically meaningless term, applying it to an abortion procedure morally indistinguishable from any other, and using the legislative results as a Trojan Horse to undermine popular judicial protections of a woman’s right to choose. They are the ultimate example of the increasing cynicism and emptiness of the leadership of the American “pro-life” movement, and the crass exploitation of its rank-and-file by Republicans (and too many Democrats) happy to use the issue to mobilize the base as long as the access to abortion of women in their social milieu aren’t affected. Congress is employing rank dishonesty to play political games with the lives and bodies of American woman. The Supreme Court may not end up telling it to stop, but it certainly should.

But, of course, it didn’t.

Further reading:

• This 2004 Harper’s article, by Cynthia Gorney, is the best history – legal, medical, and social – I’ve ever read of the Partial Birth Abortion Ban Act of 2003, written in the days when the Act was being overturned by three states. I highly recommend it to everyone. (via Feministing)
• Dahlia Lithwick gives Justice Kennedy the smackdown in Slate!