Thursday, April 19, 2007

SCOTUS Upholds Partial Birth Abortion Ban

The US Supreme Court today announced a 5-4 decision in Gonzales v Carhart and Gonzales v. Planned Parenthood. The decision and concuring and dissenting opinions are 73 pages and the experts are still deciphering what it all means and whether it was a narrow or a broad decision. But that hasn't stopped people from getting early comments out.

In 2003 Congress passed, and Bushed signed the Partial-Birth Abortion Ban Act. In 1995 and 1997 Bill Clinton vetoed similar bills. Reuters has a recap of Supreme Court abortion rulings. In particular in 1992 Planned Parenthood v. Casey ruled that some limitations on abortions were allowed (parental consent, informed consent, and a 24-hour waiting period) as long as they didn't present an undue burden to the woman (spousal notification was not allowed).

In 2000, the court in Stenberg v. Carhart struck down by a 5-4 vote a Nebraska "partial birth abortion" law. "The Nebraska law at issue prohibits any 'partial birth abortion' unless that procedure is necessary to save the mother's life." The court struck it down for two reasons. First, since it didn't have exceptions to preserve the woman's health (merely her life). Second because there was some disagreement on the medical definitions involved so "because all those who perform abortion procedures using the D&E method must fear prosecution, conviction, and imprisonment, the Nebraska law imposes an undue burden upon a woman's right to make an abortion decision"

"The Partial-Birth Abortion Ban Act was signed into law by President George W. Bush on November 5, 2003, and immediately challenged. Three different U.S. district courts, the Northern District of California in Planned Parenthood v. Ashcroft, the Southern District of New York in National Abortion Federation v. Ashcroft, and the District of Nebraska in Carhart v. Gonzales declared the law unconstitutional. All three cited the law's omission of an exception for the health of the woman, and all three decisions cited precedent set by Roe v. Wade (1973) and Stenberg v. Carhart (2000)." On appeals of these cases the US Court of Appeals for the 8th, 9th and 2nd Circuit all found the law unconstitutional for the same reasons: (1) it unduly burdened a woman's ability to choose a second-trimester abortion, (2) was too vague in it's definition of the banned procesdure, and (3) lacked a health of the woman exception. So six courts thought the new law violated the precedents of Casey and Stenberg.

Kennedy wrote the decison of the court, with RATS (Roberts, Alito, Thomas, Scalia) joining.

Since some of the justices joining didn't agree with the Casey decision, this opinion starts by saying that all agree that Casey shows the government has a legitimate interest in protecting an unborn fetus. Casey had 3 holdings: (1) that before viability the woman has a right to choose without undue state interference, (2) after viability the state can restrict abortion with exceptions for endangering the life or health of the woman, and (3) "the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child." For some reason the opinion only discusses the third though it says all three apply.

Without getting too graphic, the act bans only "intact dilation and evacuation" (D&E) as opposed to standard D&Es. They say it's not vague in describing the banned procedure since it defines specific anatomical landmarks in the procedure (delivery of the head or feet up to the navel) that must be deliberately met and if met merely accidently the ban doesn't apply. They also say that "it applies both previability and postviability" and I thought that went against Casey.

They say it's not an undue burden because there are other alternatives that are allowed. While some doctors claim an intact D&E is safer, this isn't agreed too. "Congress found, among other things, that ì[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."

"In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails...The State has an interest in ensuring so grave a choice is well informed." But since they are banning the procedure I don't see how this applies. The woman can no longer make a choice, informed or not.

They said that there was no concensus on whether an intact D&E was safer than a standard D&E. "The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty." They don't accept Congresses finding of fact that a intact D&E is never medically necessary on face value and yet for some reason they don't let that influence them on the health risk to the woman. "When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations. The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a womanís health, given the availability of other abortion procedures that are considered to be safe alternatives."

Reading the opinion through it seemed ok but not particuarly tight. Reviewing it to write this I didn't find it compelling at all.

Thomas wrote a concurring opinion: "I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, has no basis in the Constitution." What's interesting is that only Scalia joined in this, Roberts and Alito did not. Maybe they really don't want to overturn Roe or Casey.

He also says "I also note that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court." leadinig people to believe that he thinks this is another way to attack Roe.

Ginsburg wrote a scathing dissent with Stevens, Souter, Breyer joining. "Today's decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health."

"In Stenberg, we expressly held that a statute banning intact D&E was unconstitutional in part because it lacked a health exception. We noted that there existed a 'division of medical opinion' about the relative safety of intact D&E, but we made clear that as long as 'substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health,' a health exception is required." That is a division in medical opinion means there is risk.

She then rips apart Congress' findings of fact pointing out the even the opinion agrees. However she gives much more description about how wrong Congress was. "[N]one of the six physicians who testified before Congress had ever performed an intact D&E. Several did not provide abortion services at all; and one was not even an obgyn. . . . [T]he oral testimony before Congress was not only unbalanced, but intentionally polemic."

"For example, Congress determined that no medical schools provide instruction on intact D&E. But in fact, numerous leading medical schools teach the procedure. Among the schools that now teach the intact variant are Columbia, Cornell, Yale, New York University, Northwestern, University of Pittsburgh, University of Pennsylvania, University of Rochester, and University of Chicago."

"[T]here was no evident consensus in the record that congress compiled. There was, however, a substantial body of medical opinion presented to Congress in opposition. If anything . . . the congressional record establishes that there was a 'consensus' in favor of the banned procedure."

"Similarly, Congress found that [t]here is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures...But the congressional record includes letters from numerous individual physicians stating that pregnant women's health would be jeopardized under the Act, as well as statements from nine professional associations, including ACOG, the American Public Health Association, and the California Medical Association, attesting that intact D&E carries meaningful safety advantages over other methods. No comparable medical groups supported the ban. In fact, all of the government's own witnesses disagreed with many of the specific congressional findings."

Is this really the level of competence of Congress? Pathetic. Clearly this law was political motivated and not fact-based.

During the trials there was even more evidence. "During the District Court trials, 'numerous' 'extraordinarily accomplished' and 'very experienced' medical experts explained that, in certain circumstances and for certain women, intact D&E is safer than alternative procedures and necessary to protect women's health."

"The District Courts' findings merit this Court's respect. Today's opinion supplies no reason to reject those findings. Nevertheless, despite the District Courts' appraisal of the weight of the evidence, and in undisguised conflict with Stenberg, the Court asserts that the Partial-Birth Abortion Ban Act can survive 'when . . . medical uncertainty persists.' This assertion is bewildering. Not only does it defy the Court's longstanding precedent affirming the necessity of a health exception, with no carve-out for circumstances of medical uncertainty,"

She says that while the court claims the ruling advances the governments legitimate interest in preserving fetal life, it doesn't since it only targets a method of abortion. "And surely the statute was not designed to protect the lives or health of pregnant women." The standard D&E procedure is equally brutal; "that the State furthers any legitimate interest by banning one but not the other, is simply irrational."

"Ultimately, the Court admits that ìmoral concernsî are at work...the concerns expressed are untethered to any ground genuinely serving the Government's interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent." She points out the courts claim that some women are depressed after an abortion and worry that doctors might withhold information about the procedure. But she says "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.

Casey tried to balance the woman's vs the states interests at the line of viability. "In some broad sense it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing child...Today, the Court blurs that line, maintaining that '[t]he Act [legitimately] appl[ies] both previability and postviability because . . . a fetus is a living organism while within the womb, whether or not it is viable outside the womb.'

"The Court's hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label ìabortion doctor. A fetus is described as an 'unborn child,' and as a 'baby', second-trimester, previability abortions are referred to as 'late-term', and the reasoned medical judgments of highly trained doctors are dismissed as 'preferences' motivated by 'mere convenience', And, most troubling, Casey's principles, confirming the continuing vitality of ìthe essential holding of Roe,' are merely 'assume[d]' for the moment, rather than 'retained' or 'reaffirmed'."

She points out that in Casey the undue burden clause was not to be applied to the population of all women as the opinion does but to those women that would be burdened with an actual restriction. "Thus the absence of a health exception burdens all women for whom it is relevant--women who, in the judgment of their doctors, require an intact D&E because other procedures would place their health at risk."

"It makes no sense to conclude that this facial challenge fails because respondents have not shown that a health exception is necessary for a large fraction of second-trimester abortions, including those for which a health exception is unnecessary: The very purpose of a health exception is to protect women in exceptional cases.

"In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court's defense of the statute provides no saving explanation. In candor, the Act, and the Courtís defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court--and with increasing comprehension of its centrality to women's lives. When 'a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue.'"

Having read all 73 pages I can't imagine how anyone can not be convinced by Ginsburg's arguments. I've found some of her past decisions to be sometimes unrigorous (in my layman''s terms and I haven't read many of her decisions) but not this one. Congress apparently ignored medical experts who said it was a safer procedure and merely deemed it not so. The court even agreed this was wrong but didn't let facts sway their decision. They couched their decision in terms that it wasn't an extreme restriction because an arbitrary line was specifically drawn. I wonder why they bothered stopping at that. Is it because that wasn't the case presented to them or merely that they don't have the votes to overturn Roe so they are just "chipping away"?

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