Supreme Court Upholds Abortion Ban
In Gonzales v. Carhart (Carhart II), Justice Kennedy wrote the opinion for the majority, which included Alito, Roberts, Scalia and Thomas. Justice Ginsburg (the only woman on the Court), in her dissent, asserted the ruling "cannot be understood as anything other than an effort to chip away at a right declared again and again by this court."
In a key area -- the requirement of a health exemption -- the Roberts Court has reversed Stenberg v. Carhart (Carhart I). In that prior decision (and the most recent one on abortion), the Court "held that where there is a dispute in the medical community about whether an abortion restriction could endanger women’s health, and where 'substantial medical authority' supports the position that it could, then the restriction must contain a health exception." (emphasis added)
In the Partial-Birth Abortion Ban Act of 2003, Congress defined, named and then banned something that is not a "medical term and is not recognized in the field of medicine."
Thus the Court has aligned itself with a conservative Congress and a conservative President bent on ignoring both medical testimony and previous Court decisions requiring medical exceptions to preserve Constitutionality. As a consequence, the Court has ruled that in a case of "medical uncertainty" (ie, lack of 100% unanimity), politicians have the right to decide which medical procedures are legal and which are illegal.
[The American College of Obstetricians and Gynecologists] objects to the 2003 federal ban because it exposes women to serious, unnecessary health risks and does not include any exception to protect women's health. In addition, ACOG objects to the Act's vague and overly broad terms because doctors will be unable to determine whether their actions are prohibited by the Act. As a result, the Act will deter doctors from providing a wide range of procedures used to safely perform induced abortions.
The Act had been challenged based on its language, not its application. Kennedy said this was not a valid challenge. Instead, the Court should consider challenges when "a condition has or is likely to occur in which the procedure prohibited by the Act must be used."
In her dissent, Ginsburg detailed errors of fact that had been presented as evidence. She also took issue with the conservative rhetoric Kennedy employed, as well she should have.
[T]he Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from "[s]evere depression and loss of esteem" ... [thus] the Court deprives women of the right to make an autonomous choice, even at the expense of their safety ...
This way of thinking reflects ancient notions about women's place in the family and under the Constitution -- ideas that have long since been discredited.
Six times, Kennedy uses the phrase "abortion doctor" to reference obstetrician-gynecologists and surgeons who perform abortions. Ginsburg calls this use of a "pejorative" a demonstration of "hostility to the right Roe and Casey secured."
In addition, the opinion refers to the fetus as an "unborn child" and as a "baby" -- non-medical terms with emotional punch. Finally, Ginsburg notes, "reasoned medical judgments of highly trained doctors are dismissed as 'preferences' motivated by 'mere convenience'," more ammunition for her claim of overt hostility.
Writing for the SCOTUS Blog, Lyle Denniston foreshadows additional Congressional meddling into medical decisions:
Congress has been allowed to become a major player in the regulation of the medicine of abortion... And the Court, relying on a 1974 precedent that had to do with drug rehab as an alternative to time in prison (Marshall v. U.S.), has given a ringing endorsement to congressional prerogative in matters of medicine: "When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad."
Read that again: the Court relied on a 1974 precedent that had to do with drug rehab as an alternative to time in prison in granting Congress the power to legislate in the event of medical and scientific uncertainties. This authority sweeps much further than abortion -- I can see climate change on the horizon.
However, it remains to be seen whether this decision is an all-out assault on Roe v Wade. After all, only two justices -- Thomas and Scalia -- are on record supporting its repeal.
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