David Savage details the case. Excerpt:
The replacement of O'Connor with Justice Samuel A. Alito Jr., a conservative and a Catholic, has convinced many legal experts that the court is prepared to uphold stricter regulation of abortion....
After [Congress enacted the Partial-Birth Abortion Ban Act], federal judges in San Francisco, New York and Omaha conducted trials on lawsuits that sought to overturn it. They heard from doctors who teach in medical schools at Cornell, Yale, Columbia, Northwestern, the University of Pittsburgh and UC San Francisco.
By the middle months of a pregnancy, doctors remove the fetus with surgical instruments, using the D&X method or the more common "dilation and evacuation," called a D&E. In that procedure, the doctor breaks apart the fetus before removing it from the uterus.
Experts told the three judges that the D&X procedure was not the only safe way to perform abortions after 20 weeks, but was safer than D&E in some cases, especially for women who have a damaged immune system or are in danger of hemorrhaging.
"Congress can 'find' that the moon is made of green cheese. That doesn't make it so," Dr. Nancy Stanwood, who teaches obstetrics at the University of Rochester, said in a recent interview. "When you're doing surgery, shorter and faster is better. If an intact extraction is possible, it's preferable."...
Dr. Jill Vibhakar, who teaches obstetrics at the University of Iowa and performs abortions at an independent clinic in Iowa City, is a plaintiff with Carhart in the suit before the court. She said the justices face the same issue Wednesday that they did when they threw out the Nebraska ban [in Stenberg v. Carhart in 2000].
"Nothing has changed recently in medical practice. The only thing that has changed is that a moderate female justice has been replaced by a conservative male justice," Vibhakar said.
The National Review has an editorial on the subject. Let's see how seriously it takes the central legal problem presented in the case, which is the comparative danger of the D&E. (Both the D&X and the D&E are gruesome and kill the fetus.)
Nobody has ever shown an instance in which a partial-birth abortion was necessary to save the life or health of a woman. The most defenders can show is that there may be instances in which individual abortionists may decide that it is the safest method of abortion.
The sophisticated case is the one made by Justices John Paul Stevens and Ruth Bader Ginsburg, and in lower courts by, among others, Judge Richard Posner. The argument is that nothing morally distinguishes partial-birth abortions from other methods of abortion in the second and third trimester. What difference could it make to a fetus, these jurists ask, whether its feet are in or out of the womb when it is killed? The bans are irrational.
This argument has some force, but even more chutzpah. The Supreme Court, with the eager assent of all of these jurists, has declared that the child within the womb can have no protection. The mother has a right to kill it at any time it is within her. The ban on partial-birth abortion is an attempt to mark an outer boundary to this right.
If that boundary is to fall, one could, with equal force, ask what difference it makes to a child whether it is killed within the womb or entirely outside it. One could, that is, use the Court-enforced legality of late-term abortion to construct a right to infanticide. Surely some abortionist somewhere could be found who would conclude that it is safer for the mother to remove the child entirely from her womb before dealing the fatal blow.
That's shifting the subject. You have to face the fact that breaking up the fetus within the uterus creates dangerous fragments. I understand that a lot of people find both procedures monstrous. But as long as the woman has a right to an abortion, how can government deny her what is the safer of two procedures?
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You need to picture yourself with a uterus and inside it is a fetus that is doomed by some horrible, fatal birth defect. You would like to be able to have another baby and there are two ways to remove the fetus, one of which will create sharp fragments that may hurt your chances to have that new baby and another that will not.
The government is telling you that you have to endure the sharp fragments procedure because people who think you shouldn't be able to have an abortion at all have focused on the less dangerous procedure and become horrified by it. The sharp fragments procedure is equally horrible, but they haven't focused on that. So you'll have to deal with the sharp fragments and the way it might impair your ability to carry out a pregnancy in the future.
Or just picture your wife in that situation. You're already devasted by the condition of the fetus and the need to abort it, and now the government, with selective sensitivity regarding the alternate procedures, is forcing you to risk your chance of future happiness with a healthy child.
What gives the government the right to interfere with your family that way?
But Prof. Althouse, you aren't answering the question about what if a doctor decided it would be better yet to remove the "horribly deformed" fetus from the uterus entirely and then kill it. Surely you don't permit your students to respond to hypotheticals by accusing you of "changing the subject."
"What gives the government the right to interfere with your family that way?"
At some point you are murdering somebody. You seem to make asking the question of when that happens invalid and irrelevant. First, decide on unfettered acces to abortion. Second, determine best methods. Decide when the baby becomes a person entitled to life? Irrelevant.
Professor, I read you every day. I find your evenhandedness and true political independence refreshing. We have always disagreed on abortion, but this. Wow. Just wow. This post is depressingly cold and scary.
"What gives the government the right to interfere with your family that way?"
That there are people who do not use abortions - which, justified in individual cases or not remains the taking of an innocent life - in none but the exceptional cases you describe. If there were any indication that a good faith exception would not be used as a loophole, I'd be more than willing to sign on to that loophole, but the simple reality is that there are plenty of women who abort their child not because it has some massive incipient congenital defect, and not because birth poses a grave threat to their life or health, but because they have been told for thirty years that it is a choice, and they are exercising that choice. Who is to blame for the all-or-nothing posture of the abortion debate? Look to NARAL and its ilk.
And even if one disagrees with me, even if one happens to think that abortion should be legal from conception until, you know, two months after birth, whenever, there is nothing in the Constitution of the United States that prevents you from passing a law to that effect. These cases aren't about whether abortion should be legal, they are about whether - and to what extent - the Constitution removes the issue from the democratic process. It is precisely the same as gay marriage; if you want gay marriage, pass a law. If you want legal abortion, partial birth or otherwise, pass a law. But there is nothing in the Constitution that demands laws or no laws on abortion, and the only thing supporting the idea that there is is forty years of deeply flawed substantive due process jurisprudence that has done incalculable harm to this country, to the law and to domestic politics.
It's time to start acting like grownups. It's time to take the courts out of this messy, complicated and extraordinarily emotional subject, and if you want to advocate taking down the entire edifice in these cases, instead of just taking down Stenberg, I'd re-read Justice Kennedy's dissent in that case quite carefully before concluding that he won't consider that a price worth paying.
May I be conclusory? There is no constitutional right to abortion, but there is also no congressional authority to ban abortion.
Even Scalia might agree.
Gerry: "But is the only recourse to open the proverbial floodgates? That any woman, regardless of the health status of her baby, can choose to end its life, up until birth? You gave the example of a severely deformed baby. What about a healthy one, where the only concern the mother has is that she decided at the very end that she did not want it?"
This case isn't about government attempts to protect the life of the unborn in the late stages of pregnancy where a method like this is used. It is only about a restriction on the method used. The fetus dies either way. This is a law about forcing the use of the less safe method. The "floodgates" you're worrying about have to do with some other law, not at issue here.
SerenityNow -
Scalia does agree ("my difficulty with Roe v. Wade is a legal rather than a moral one. I do not believe ... that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would and could in good conscience vote against an attempt to invalidate that law, for the same reason that I vote against invalidation of laws that contradict Roe v. Wade; namely, simply because the Constitution gives the federal government ... no power over the matter"), and so do I: I have argued that the partial birth abortion ban before the court tommorow is ultra vires as it applies beyond areas under exclusive federal jurisdiction (the military, the District of Columbia, etc.). But that is not the case before the court. This case is not an as-applied challenge on ultra vires grounds, it is a facial challenge under the Stenberg standard. Neither of the parties to the case - nor, as far as I am aware, any amici - have raised the federalism issue. My view of these cases is that the court has not been asked to sua sponte decide the authority of Congress to enact FPBAA, it has been asked to decide whether it is unconstitutional in the specific way raised in this case.
Congress clearly has the power under the Commerce Clause to regulate commercial activities -- such as medical practice -- that have a substantial effect on interstate commence. You'd have to overturn an awful lot of case law to exclude congressional power this way, and this not what is being argued in the case before the Court.
You need to picture yourself with a uterus and inside it is a fetus that is doomed by some horrible, fatal birth defect.
What birth defects are there that can be detected in time for a late term partial birth abortion, but cannot be detected earlier in the pregnancy so that a normal abortion can occur?
Under what circumstances is it safer for the woman to perform a partial birth abortion on her, instead of simply delivering the baby alive?
"The floodgates [Gerry is] worrying about have to do with some other law, not at issue here."
Ann, with great respect, I think that's a very peculiar reading of what is about to transpire in these cases. I think that there are really three possibilities: either the cases are going to be disposed of on narrow procedural grounds (if Roberts can engineer it), or the Kennedy will rat and reaffirm (or possibly narrow) Stenberg, or these cases will be decided and stand for a much broader proposition than the particular and specific laws contested: that states can, in fact, impose a certain class of regulations on abortion, if the democratic process so wishes. It's quite hard to believe that, given the nature of the challenge the parties have brought, that this case will be decided in a manner so specific to its facts that it will apply only to a specific manner.
Ann,
Even were I not more than entirely willing to overturn much of that precedent you allude to, what is the argument that obtaining an abortion is commerce? That you have to be born to participate in commerce? That abortions are usually paid for using funds that have traveled across state lines? That is surely a hell of a leap, even under existing commerce clause precedent.
I agree that the critical question, and the one I'd like to see Ann answer, is this:
... Since "the fetus dies either way," if it proves to be EVEN SAFER for the mother than either a D&E or a D&X, why not extract the fetus entirely from the mother and kill it on a different table? Why should the law force the doctor to use "the less safe method" of killing the fetus while it is partially inside the mother's body, when the much safer method of infanticide is available?
It's hard to imagine that separately extracting the fetus and killing it several feet away from the mother isn't equally safe or safer for the mother than killing it while part of it is still in her body. At the very least she might be splattered with gore or accidentally jabbed with a sharp instrument.
So what's the difference?
Simon: The Commerce Clause argument is very easy. Medical practice is a commercial enterprise. The doctrine requires only a substantial effect on interstate commerce (and considers the activity in the aggregate). We are talking about regulating doctors.
Fen: "'It is only about a restriction on the method used.' But isn't that method cruel and inhumane?"
You are resisting the crucial point. There are two methods. The other one is equally cruel and inhumane. Worse, actually, if you imagine it from the perspective of the fetus.
This is a case about government limiting the woman to one of two methods. If you cannot focus on the issue in the case, you are not thinking about the case in a legal way and you will not be able to understand what the Court is considering.
You can, if you want, stick to expressing moral outrage, but what is the sense of your moral outrage if it excludes the reality that the alternate method is equally horrible?
There are some harsh things in medical practice. Most people don't like to think about them. But to choose to think about one and to exclude others and to intrude into the doctor patient relationship because you've become outraged about the one thing you've decided to think about is itself an outrageous intrusion.
There are some harsh things in medical practice. Most people don't like to think about them.
What other medical practice is designed to purposefully kill a paient?
Incidentally, I don't have any illusions that banning specific medical procedures is going to do much in and of itself to reduce the number of abortions.
What I hope for w.r.t. this debate is that it forces more people to think critically about abortion and about the difficulty of drawing a bright-line distinction between "life" and "not-life" anywhere along the post-fertilization spectrum.
The ideal way for abortion to become illegal, if you ask me, is for women's and men's minds and hearts to change so that the impulse to kill the unborn is recognized as a murderous one by nearly everyone, because at that point nearly everyone recognizes the unborn as a person with the same rights as the born. Keeping the partial-birth debate in front of the public's eyes --- showing what Roe has led to --- may help.
We do have at least one American precedent for this kind of sea-change of hearts and minds. But which came first, the outlawing of human trafficking, or the overwhelming acceptance of the human rights of nonwhites?
Ann,
But you yourself have noted that while Lopez may not "have scrapped the substantial effects test," it has none-the-less "limited that test to activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." A. Althouse, Inside the Federalism Cases, 574 Annals of the Am. Acad. 132 (2001) at 137, text accompanying n.19 (internal quotation marks ommited; emphasis deleted). Certainly, abortion involves a commercial transaction, but if obtaining an abortion meets that standard, why doesn't obtaining a gun, and a fortiori, why doesn't obtaining bullets?
Moreover, in that same article, you characterized Justice Breyer's Lopez dissent as being that "it is easy to make ... the connection between guns in schools and the economy ... [if one] visualize[s] children as future workers, [then] everything that affects them affects the economy." I read your comment on the next page that "one would need to accept the Breyer theory of causation to accept VAWA's connection of gender-motivated violance to interstate commece" as a rejection of Breyer's argument?
I realize - as some commenters may not - that I'm arguing the point with someone who has twenty years writing articles about federalism, but what the hell, the Colts just beat the Patriots on their home turf, so I feel lucky. ;) I just don't buy that the substantially effects test reaches abortion. I remain of the view that this law is ultra vires, and that abortion is purely and exclusively a matter for the states to regulate or permit, as they determine most appropriate using normal democratic means.
I will never have an abortion.
I hope my daughter never has one. If she does need one, however, I hope that she and her doctor can make the best decision for her. I don't see why Big Government has to be standing in the room with them, kibbitzing. If the choice is between a D&X, or a D&E, or something else, she and her doctor should make that choice that is safest for my daughter. I admit this is a practical viewpoint, not necessarily a legal viewpoint. IANAL.
What gives the government the right to interfere with your family that way?
So a couple wants to kill a person who they do not believe is up to their standards, and I am supposed to feel sorry for them because they may want to try making another person at a later point and the current legal procedure might endanger that?
If they're so worried about creating future people (people who they may or may not want to kill as well), they could go ahead and have a full term birth with the person who they've deemed so unworthy of life.
Both procedures are utterly monsterous and should be banned. I would never move an inch in the direction of allowing additional procedures for this--especially not procedures that allow a person who is entirely outside of the womb to be murdered. A separate person obviously has rights, even under the current system.
MAdisonMan -
That is not the question at issue, though. This isn't a question on whether abortion should be legal, it is a question of whether the Constitution forecloses the consideration of that question. I think Ann's point is that if the Constitution creates a right to abortion, then that logic must carry one to Stenberg's result. I don't think that's necessarily the case, but fortunately for me, I don't have to reach that question since I don't believe the Constitution creates any right to abortion. Even if I believed that the Constitution created an abstract right to privacy, per Griswold, I would still say that the Constitution creates no right to abortion. So to my mind, the question that you want to debate - what right does the government have to regulate abortion - isn't the question before us. The immediate question is, can we even HAVE that debate? Can we even talk about whether we should or should not?
Suppose Ann's argument convinces Justice Kennedy, and Justice Kennedy says "you know what? That's fine. If I can't overrule Stenberg without overruling Roe and Casey, I'm going to sign on to a Scalia opinion that does just that." If I get my way, MadisonMan, and that happens, what happens next? Must abortion then be prohibited? Of course not. You will be able to make that point in a democratic debate - and, if your side is to be believed, my side will lose that debate. Like many pro choice folks, I think you're trying to have it both ways.
Clearly what's needed here is some new Christian doctrine that will maintain abortion rights while keeping the Bible-pounders happy...say a proclamation that a baby doesn't have a soul till it's baptized. Can't someone please bribe the Pope or something and end this tiresome debate?
Sorry to be some tiresome with concerns about infanticide, Jack.
Can you show us where anyone's been pounding a Bible? Who quoted chapter and verse? And I guess I missed the part where PBA opponenets mentioned the Pope. Help?
Since people haven't been doing those things, is it safe to assume that you simply don't want Christians to have a voice in public policy even if their objections aren't based on, you know, Bible-pounding?
Ann says: "Let's see how seriously it takes the central legal problem presented in the case, which is the comparative danger of the D&E."
Certainly, Ann is right that the narrow issue presented by the case is the legislature's right to impose its choice between the less safe/less gruesome and more safe/more gruesome abortion procedures at issue.
Put aside for the moment a court's power to substitute its factual findings for those of the legislature (that's the less safe/more safe part of the case) and just look at the case as asking whether the federal Constitution prohibits a state legislature from imposing its choice between the two stated alternatives. The "less safe/more safe" distinction is a medical judgment; the "less gruesome/more gruesome" distinction is basically a moral judgment (the same kind of judgment in play when the court considers, for example, acceptable methods of execution under the 8th Amend.). Viewed in that framework, the issue in this case presents the legislature's power to conclude that a moral value choice trumps a medical value choice.
Ann suggests that the moral value choice here - banning the more safe/more gruesome procedure -- is questionable because, regardless of which procedure is chosen, the baby is still dead in the end. Echoing Ann's point, those challenging the state's ban on partial birth abortion contend that the prohibition of the more safe/more gruesome procedure is irrational, and thus unconstitutional, because they measure rationality in a utilitarian way. The short answer is that nothing requires a legislature to approach moral values or choices in that way, or to adopt a utilitarian approach or scale of measurement in evaluating these issues. Those who favor a constitutional limitation on state legislatures need to explain how one is to weigh the moral loss that would follow if the "less gruesome/more gruesome" choice made by the legislature is invalidated against the putative utilitarian gain that would presumably result from giving the "less safe/more safe" criterion a constitutionally privileged place. Where in the constitution does one find the calculus needed to make that judgment? For those looking for it, it's probably hidden in the Fourteenth Amendment right next to the clause adopting Mr. Herbert Spencer's Social Statics. See Lochner v. New York, 198 U.S. 45 (1905); but see West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
Once the case is posited as a choice between competing values, moral vs. medical, the argument that the federal Constitution limits a state legislature's power to choose between those competing values disappears. If the Court views the case in that way, of course, then the underpinning of Roe v. Wade is seriously in doubt. Many of the comments in this string suggest that, at least among the commenters here, the basic choice between competing values represented by Roe hasn't convinced quite a few thoughtful observers of the scene.
If teh Court decided to veer away from Roe, it's not likely to happen with some big holding that Roe is overruled. Just as the Lochner era came to an end with a footnote in West Coast Hotel, the Roe v. Wade era is likely to end (if it ever does) by indirection. The partial birth abortion cases offer plenty of opportunity for that kind of indirection, in reality marking a new direction, if the Court wants to reign in or begin the process of reconsideration of its abortion precedents. Alternatively, if the Court simply applies precedent, then Stenhart v. Carhart will quite likely be found to dictate the result in this case. That was true in the Lochner era, too, until it wasn't.
But as long as the woman has a right to an abortion, how can government deny her what is the safer of two procedures?
One of the procedures isn't abortion. One of the procedures is infanticide. It isn't an issue of her body if it isn't in her body anymore. No one has a right to kill infants.
"But as long as the woman has a right to an abortion, how can government deny her what is the safer of two procedures?"
Generally, an abortion is far more dangerous than people realize, and specifically, is far more dangerous than childbirth when the long-term increase in breast cancer risk is taken into account. This is the elephant in the room as far as I'm concerned when it comes to abortion. While a student at the University of Wisconsin law school I authored a law review article demonstrating the viability of medical malpractice lawsuits against abortion providers who fail to inform women about this increased risk prior to performing an abortion. The article was distributed to every member of the U.S. House of Representatives by Congressman Dave Weldon, M.D., and some Congressional action was initiated on this issue, which unfortunately was not pursued with the diligence its importance warranted. The article is available in its entirety (with permission of the University of Wisconsin) on my website, at www.johnkindley.com.
Anyone doing a Google search on this issue will see that the National Cancer Institute does not agree that there is a valid link (among other organizations, but NCI, with its hands on the research purse strings, leads the pack, and the others must fall into line). Rather than going into a long explanation of how I can believe there is overwhelming evidence of a link in the face of the contrary opinion of such an august authority, I'll just say two things: 1) politics, and the political ramifications of officially recognizing after all these decades the decades-old evidence linking induced abortion with increased breast cancer risk; and 2) I was lead counsel in a false advertising case in North Dakota in which a patently false statement made by the NCI was a central issue. The briefs and the North Dakota Supreme Court's opinion in the case, Kjolsrud v. MKB Management dba Red River Women's Clinic, can be found on the North Dakota Supreme Court's website.
"Once the case is posited as a choice between competing values, moral vs. medical, the argument that the federal Constitution limits a state legislature's power to choose between those competing values disappears. If the Court views the case in that way, of course, then the underpinning of Roe v. Wade is seriously in doubt."
As I understand Ann's point, you're making the same argument - that Roe and Stenberg are a package deal. Of course, you (and I) come down on the side of eliminating both, while Ann prefers to retain both.
As I understand Ann's point, you're making the same argument - that Roe and Stenberg are a package deal. Of course, you (and I) come down on the side of eliminating both, while Ann prefers to retain both.
Actually, like Kennedy believes, you can preserve Roe just because you're a conservative of the stare decisis sort and reject Stenberg because it licenses infanticide.
There is nothing unprincipled about drawing a line between abortion and infanticide, even if you believe both should go or both should stay.
But as long as the woman has a right to an abortion, how can government deny her what is the safer of two procedures
This is just my amateur legal opinion, but women don't have a right to an abortion, per se -- they have rights to privacy and bodily self-control which abortion bans violate.
If a fetus is entirely removed from the mother's body, the rights of privacy and self-control no longer apply. While the fetus is entirely within her body they do. During the transition period -- such as when the fetus is partially outside of the mother's body -- the issue is less clear. But it seems to me that a good case could be made that those parts of a living organism that are not contained within another person's body can reasonably be protected from harm by the government.
Lotta comments here about subject I think it the greatest problem with legalized partial birth abortion:
The "inevitable birth" argument, or killing the baby in the process of birth.
See Thurgood Marshall's comments in the rehearing of Roe. He called it infanticide.
If a fetus is entirely removed from the mother's body, the rights of privacy and self-control no longer apply.
Except this argument is no good --legally -- because a woman only has an untrammeled right to an abortion when the fetus is non-viable. Once it could be possibly self-sufficient outside the womb, i.e., if you could carve it out and put it in an incubator, the woman's "privacy" and "self-control" arguments no longer work because the fetus is another self and the acts one subject commits against another subject are public. The rationale for state concern over the self-sufficient fetus is the same as that motivating homicide laws. The state has an interest in preserving life.
That's what Roe says, that's what Casey says, and that's why Kennedy dissented in Stenberg, because the right -- however you define its sources -- has been extended to include the right to commit actual infanticide.
In short: the "transition period" is viability, not whether the fetus is inside or outside of the womb.
And, in part Casey rejected Roe's trimester framework because it no longer tracked medical science -- technology shortened the time it takes for a fetus to reach viability.
During the transition period -- such as when the fetus is partially outside of the mother's body -- the issue is less clear.
No. All partial-birth abortions are of viable fetuses. If it's 3 days away from birth, the state can ban the killing outright -- according to Roe and Casey.
I understand that a lot of people find both procedures monstrous. But as long as the woman has a right to an abortion, how can government deny her what is the safer of two procedures?
In logic, when you reach an absurd and monstrous conclusion, you really ought to take another look at your premises.
Both I D&X and D&E should not be legal they should not even be an option for woman with healthy babies in utero. When does the right of a living thing go into effect with a child only after it is born because otherwise it is still it's mother's choice. I am not sure where to understand the legality in all of it. Even if a fetus is deformed if it is not a health risk to the mother who are we to play god and say it should die isn't a life a life no matter if it is born yet or not. its like we fuss about not messing with fetus stem cell research because it effects human life but yet can save thousands of others with what it teaches us about other things and yet we say a fetus that a woman doesnt want has not right to be nothing but what the mother wants even if that is death by either being torn up inside the mother or pulled all the way out except its head and killed by having its brains sucked out. Where do we as humans say the line should be drawen.
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