On Wednesday, April 18, the Supreme Court ruled to uphold, for the first time since 1973, a federal ban on an abortion procedure that does not contain an exception for the health of the mother. The ruling is unprecedented and, frankly, confusing, for several reasons.
The Partial Birth Abortion Ban Act contains a number of false assertions about the procedure (which is actually called intact dilation and evacuation) and about the medical community’s opinion of it. The ruling states that “The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives.” It asserts that the uncertainty is there.
The court has admitted that there was not a medical consensus on the issue; indeed, the American College of Obstetrics and Gynecology opposes the act and holds that the procedure is sometimes the safest one for a woman. ACOG represents more than 90 percent of certified obstetricians and gynecologists in the United States. To call this medical uncertainty is a broader interpretation of “uncertainty” than any previous abortion ruling, and is in direct opposition to the findings of the District Courts on this case, and of the Supreme Court on the same procedure in Casey v. Stenberg. Justice Ruth Bader Ginsberg, in her dissent, calls the decision “bewildering.”
The ruling also states that when women know about the procedure, they may not want to have it. These are Justice Kennedy’s words: “It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: 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.”
Of this argument for upholding the ban, Ginsberg writes, “The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.” There is only an exception for when it can be proved that the woman would have died had she not had the procedure.
It is significant that Kennedy chooses the political term “unborn child” rather than the medical term “fetus.” Elsewhere he refers to OB-GYN physicians as “abortion doctors.” In his language, he is aligning himself, and the Supreme Court, with the anti-abortion lobby. This case was ostensibly not about the right to an abortion, but this use of language indicates that under the surface it absolutely was.
The court writes, “Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.” These “moral concerns” are, as Justice Ginsberg puts it, allowed to “carry the day and case.”
I never worried before that allowing Congress to legislate on some abortion procedures would signal the impending doom of Roe v. Wade. Now I’m worried.
