21 June 2007

Abortion #2: Partial-Birth Abortion

The Objectivist
Dunkirk-Fredonia Observer
May 21, 2007

About a month ago in Gonzales v. Carhart (2007), the Supreme Court upheld a federal ban on partial-birth abortion. Justice Anthony Kennedy’s decision was shoddy and inconsistent. More important, it probably signals the breakdown of the Court’s ability to reason within the framework laid down in earlier cases.

In Gonzales, the Court noted that most abortions (85-90%) of the 1.3 million abortions performed each year are performed in the first trimester. The most common method is suction curettage in which the physician uses a vacuum-like apparatus to slice up and vacuum out the embryo.

In the usual second-trimester abortion, “dilation and evacuation” (D&E), the doctor dilates the women’s cervix and uses surgical instruments to tear apart the fetus. It may take 10 to 15 passes to remove the fetal parts. Sometimes the fetus is poisoned before it is torn apart. In partial-birth abortion (intact D&E), the doctor pulls the body up to the head outside the woman and then in order to allow the head to pass through the cervix, pierces or crushes the skull. In one variant, the doctor pierces the skull with a scissor and vacuums out the fetus’s brain (using a suction catheter).

In an earlier case, Stenberg v. Carhart, 530 U.S. 914 (2000), the Supreme Court held that Nebraska’s ban on intact D&E was unconstitutional. In response to this case, Congress passed the Partial-Birth Abortion Ban Act of 2003 (18 U.S.C. sec. 1531) which criminalized this method of abortion. The new law ignored Stenberg’s factual findings and provided a narrower ban that covered intact D&E and not other D&E methods.

The problem the Court faced was trying to allow the ban despite clear precedent (Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 [1992] and Roe v. Wade, 410 U.S. 113 [1973]) that held that an abortion ban is unconstitutional when it placed an undue burden on a woman’s right to a pre-viability abortion (viability occurs when the fetus can survive outside the woman). An undue burden occurs when a statute’s purpose or effect is to place a substantial obstacle in the woman’s path to an abortion. The Court also faced the awkward fact that Stenberg explicitly required any ban on abortion, including intact D&E, to allow it when necessary to protect a woman’s health.

The Court found the Act did not have the purpose of unduly burdening the right to an abortion for three reasons. First, the Court argued that the state may show respect for human life. The Act did this, the Court asserted, by protecting innocent human life from a brutal and inhumane procedure. In particular, it noted that intact D&E is too close to infanticide. Second, the Act helped to protect women who had this procedure done. The Court speculated that given the women’s fragile state, doctors might not fully disclose the details of the procedure. Women who had this done would then be at risk for psychological damage when they later learned what was done. Third, the Act protected the medical community’s reputation.

The Court also found that the lack of a health exception does not have the effect of imposing an undue burden on a woman seeking an abortion. It noted that medical experts disagree on whether the procedure protects women’s health. The Court then argued that disagreement among medical experts doesn’t prevent legislation in the abortion context any more than it does so in other contexts.

Justice Ruth Bader Ginsburg, normally the weakest Justice, went to town on these flimsy arguments. She pointed out that none of the three reasons were convincing. In response to the first argument, she noted that the claim that the ban shows respect for the life makes no sense. After all, it bans certain acts of fetal killing (skull destruction) and not others (tearing apart) based on the location of the fetus in the woman. This is obviously irrelevant. In addition, she noted, the ban won’t save the life of a single fetus since physicians will simply switch from intact D&E to other methods.

In response to the second reason, she noted that if the concern is that women are not giving informed consent, the obvious solution is require that they be provided adequate information. To deny them a choice due to concern about their well-being is to treat them like children. She also pointed out that the concern for psychological harm is pure speculation and not supported by science. Ginsburg ignored the third reason, probably because it is patently irrelevant.

In response to the lack of a health exception, Ginsburg noted that the Court has consistently required that laws regulating abortion, at any stage of pregnancy, safeguard a woman’s health. In addition, in Stenberg, it explicitly applied this requirement to partial-birth abortion. In addition, she noted that intact D&E is probably a medically necessary procedure in cases in which women have certain disorders (for example, bleeding disorders, heart disease, and compromised immune systems). This is because it produces less trauma to the cervix and uterus, lessens operating time, and reduces the chance of a fetal part being left in the woman. She noted that this conclusion is supported by the American College of Obstetricians and Gynecologists and the majority of highly-qualified experts on the subject.

Ginsburg’s criticisms hit their mark. Given the protection of other pre-viability abortion procedures, this ban does nothing to protect fetuses and probably endangers women’s health. As such, the ban is nothing more than an irrational attack on an abortion procedure with a bad rep. If Kennedy and his gang of five want to overturn precedent, they should do it directly rather than chipping away at it via haphazard arguments and armchair speculation.

The problem here is that the Court is looking for middle ground where there is none. The justices are trying to protect a women’s right to kill human life that is composed of relatively few cells (conceptuses and zygotes) while protecting more developed fetuses. Because there is no morally significant difference between them, because the Court has previously focused on the irrelevant point of viability, and because the Constitution is in fact silent on the issue, its decisions will continue to be contradictory and unprincipled.


The Objectivist said...

Now that they've decided the Constitution doesn't protect pre-viability abortions that don't satisfy the state's preferred message, the Roe line of reasoning will probably get unstable.

However, my prediction is that a dimwit like Kennedy will hesitate before going any further in rolling back Roe v. Wade and Planned Parenthood.

The Objectivist said...

If you look at Justice Kennedy's decision in the Texas sodomy case, you can see a sloppy justice prone to soaring rhetoric with very unclear lines and only a loose connection to precedent.

In that case, he found a Constitutional right to engage in sodomy based on the right to shape one's life, be autonomous, etc. It's hard to determine what the right includes and what it doesn't protect, unless it's interpreted as something like a harm principle.

This makes his decisions rather unpredictable. He's quickly O'Connor as a disgrace.

The Objectivist said...

I'm curious as to whether anyone thinks that intact D&E is worse than non-intact D&E. This is an argument that I would love to see defended.