Friday, April 20, 2007

Gonzales v. Carhart misunderstood

In a blog post at The Big Question, Eric Black is sadly misinformed about the consequential nature of the so-called partial birth abortion decision this week:

For those who like to see what I write when I'm writing for the paper paper (and who don't read it in the paper paper), my piece in the Thursday editions analyzing Wednesday's abortion ruling reinforced the view – expressed in a quick blogpost of Wednesday but now buttressed by interviews with two constitutional law professors whose personal politics place them on opposite sides of the abortion issue — that you should not believe the hype about how the court's approval of a federal law banning one particular abortion procedure means, prefigures or even hints that the court, as currently constituted, is ready to reverse the 1973 decision that a pregnant woman has the right to choose an abortion, especially in the early stages of a pregnancy, but that the government's right to regulate abortion increases in the later stages.

Spot doesn't know who your con law buddies are, Eric, but they have perhaps not been paying attention all these years. Here's Jack Balkin, a law professor at Yale on the ruling:

This consequence of Gonzales v. Carhart is hardly accidental. It is the result of a long and sustained strategy by pro-life advocates that has now borne fruit in Supreme Court doctrine. In his discussion of informed choice and in his purple prose about the natural bonds of love between mothers and children-- call it Kennedy's "mother and child reunion" speech-- Justice Kennedy adopts some of the rhetoric of Operation Outcry-- an anti-abortion group which has honed the new style of pro-life rhetoric. The basic goal of this new rhetoric is to undermine the notion that women exercise any kind of choice when they decide to have abortions. It seeks to turn the rhetoric of the pro-choice movement on its head. Women, the new rhetoric argues, don't really understand what they are doing when they decide to have abortions; as a result, they often regret having them later on.

The amicus brief that Justice Kennedy cites for these propositions was written on behalf of Sandra Cano, who was the original Mary Doe in Doe v. Bolton, the companion case to Roe. Cano regrets her association with Doe v. Bolton (she did not in fact have an abortion), and she sees in her experience the experience of all women. Anti-abortion activist Harold Cassidy has been instrumental in refining this style of argument over the past decade, even coming up with an invented medical syndrome, post-abortion syndrome (or PAS) that women suffer as a result of making the immoral and unnatural decision to have an abortion. As Justice Ginsburg's dissent explains, the medical evidence for PAS is flimsy; there is no evidence that women suffer more stress from having abortions than from having to bear and raise children that they aren't prepared to mother. PAS is junk science that has been championed by a new generation of anti-abortion advocates to explain why almost any woman would be out of her mind to undergo an abortion.

Let Spot lay it out for you, Eric. The import of Carhart is not the banning of a rarely-performed abortion procedure. It is that a new form of "junk science" as Professor Balkin calls it has now found its way into constitutional doctrine, and that women are not capable of making an abortion decision without the "help" of the state. Carhart strikes at the very heart of Roe v. Wade, which is that women have sovereignty over their own bodies.

We can now look forward to all sorts of legislation to "help" women make this decision: lectures, looking at ultrasounds, gruesome pictures chosen by legislators, not doctors, etc. and etc. Abortion foes are already licking their chops:

Elated and emboldened, abortion-rights opponents in state after state are planning to push for stringent new limits on second- and third-trimester abortions in the hopes of building on their victory Wednesday at the Supreme Court.

By a 5-4 vote, the justices upheld a federal ban on a procedure critics call "partial-birth" abortion, which involves partially delivering the fetus, then crushing its skull. The ruling included strong language asserting the state's "legitimate, substantial interest in preserving and promoting fetal life."

Advocates on both sides of the abortion debate predicted the ruling would spur a flood of legislation.

"We're moving beyond putting roadblocks in front of abortions to actually prohibiting them," said Troy Newman, president of Operation Rescue, a national abortion-rights opponent group based in Wichita, Kan. "This swings the door wide open."

Here's Troy Newman and others have in mind:

He and other strategists said they hope to introduce legislation in a number of states that would:

•Ban all abortion of viable fetuses, unless the mother's life is endangered.

•Ban mid- and late-term abortion for fetal abnormality, such as Down syndrome or a malformed brain.

•Require doctors to tell patients in explicit detail what the abortion will involve, show them ultrasound images of the fetus and warn them that they might become suicidal after the procedure.

•Lengthen waiting periods so women must reflect on such counseling for several days before obtaining the abortion.

And Leslee Unruh, the sweetheart from South Dakota that MNO introduced us to last week, said:

"I'm ecstatic," said Leslee Unruh, an abortion-rights opponent in South Dakota. "It's like someone gave me $1 million and told me, 'Leslee, go shopping.' That's how I feel."

She spent the day conferring with attorneys on how to leverage the ruling to maximum effect in the states: "We're brainstorming and we're having fun."

So Eric, Spot recommends that you take another look at this and perhaps your reporting won't be quite so sanguine on the effects of Carhart. You owe it to your readers.

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