Gonzales v. Carhart (the “partial-birth” abortion case)

The Supreme Court ruled 5-4 yesterday to uphold the Congressional ban on “partial-birth abortions.”

Much of the decision, written by Anthony Kennedy, hinged on whether there should be a health exemption to the ban. Congress made some factual “findings,” including that a “moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion ... is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.” Gonzales argued that these findings should be taken by the Court as the only dispositive statement of facts. The Court rejected this, in part because some of the facts were blatantly wrong (such as that the procedure is not taught in any medical schools), but made real-world facts irrelevant to its decision by claiming that there is “medical uncertainty” about whether the procedure is ever medically necessary (in the same way that the Bush admin claims there is scientific uncertainty about global warming or the tobacco companies about whether nicotine is addictive), and ruling that “the Act can survive facial attack when this medical uncertainty persists.”

Kennedy also pretended that there was no need for a health exemption because there are perfectly good alternatives. For example, the fetus can still be torn apart and removed in pieces; Kennedy is cool with that. But that procedure is much more invasive and dangerous: more poking around with instruments, greater possibility of fetal tissue remaining inside the body and of damage when sharp broken fetal bones are removed. If it’s really necessary, Kennedy says, to remove the fetus intact, the doctor can simply kill it with an injection before extraction, a totally unnecessary medical procedure which would be performed only for the purpose of complying with the law and which poses a risk (how great a risk I’m not sure) to the mother.

And really, the doctors, who Kennedy suggests only do this procedure out of “mere convenience,” need only get off their lazy asses and “find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand.” No problemo.

Or, Kennedy says, if it’s really really really medically necessary (which he has to admit is a possibility because of that “medical uncertainty” he’s hanging this ruling on), the woman can simply take some time out from her medical crisis and go to court. No problemo.

One danger of this ruling for the future is that it blurs the line established by previous abortion rulings between viability and non-viability, and allows a line that is arbitrary and unrelated to medical science. The standard in this law is what the Court calls “delivery to an anatomical landmark,” that is, if the fetus is delivered head-first, the landmark at which the procedure becomes illegal is when “the entire fetal head is outside the body of the mother” and if delivered feet-first, the landmark is the belly button.

Kennedy affirmed the legitimacy of Congress using the regulation of a medical procedure to make a moral statement: “the government may use its voice and its regulatory authority to show its profound respect for the life within the woman.” And he accepts Congress’s “findings” that (in the words of the Act) “Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life” and that the procedures have a “disturbing similarity to the killing of a newborn infant.” This is a similarity not so much in the medical sense as in the aesthetic or moral sense. He also says that “It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, undermines the public’s perception of the doctor’s appropriate role during delivery, and perverts the birth process.”

Perverts the birth process.

Then Kennedy rather abruptly... well, see if you can follow what Kennedy clearly thinks is some sort of logical argument: “The Act also recognizes that respect for human life finds an ultimate expression in a mother’s love for her child. Whether to have an abortion requires a difficult and painful moral decision, which some women come to regret. In a decision so fraught with emotional consequence, some doctors may prefer not to disclose precise details of the abortion procedure to be used. It is, however, precisely this lack of information that is of legitimate concern to the State.” So I guess he’s saying that this “ultimate” expression – his mother’s a saint, a saint I tell you! – leads doctors to fuzz over some of the details, so better just to ban the procedure altogether.

What details does Kennedy think the mother should be told before making a decision? That “she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.” He evidently thinks that a true mother, with that ultimate expression of respect for human life thing going on – she’s a saint, a saint I tell you! – would and indeed should go through with the pregnancy no matter the risk to her health. Kennedy is much more concerned with the supposed emotional consequences to the mother than the physical ones. “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.” And it’s “self-evident” that such women would be really upset to find out later about the whole brain-vacuuming thing.

Justice Ginsburg in her dissent notes: “The Court’s hostility to the right Casey and Roe secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists not by the title of their medical specialties, but by the pejorative label ‘abortion doctors.’”