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SC upholds partial birth abortion ban

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Korthor

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Justice Anthony Kennedy, who wrote the decision, said, "The law need not give abortion doctors unfettered choice in the course of their medical practice." No, of course not. The choice should be the law's.

Eve Gartner from Planned Parenthood said, "This ruling tells women that politicians, not doctors, will make their health care decisions for them." Though not even doctors can make that decision for the individual, only the individual herself, the sentiment is well-founded.

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The Supreme Court upheld PBA ban on a 5-4 vote. The replacement of O'Connor by Alito probably tipped the balance. Let those those defending "strict constructionism" as a legal philosophy witness their handywork...

Can I post a reply to this message?

Netafja

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The strategy of the anti-choice camp appears to be as follows:

Attack abortion frontally on the intellectual front, to make people think it is bad in some way; but, do not attack it frontally on the political front.

Politically, ...

  • Target some subset of abortions that represents a small percentage of abortions, and which can be classified in a way that uses the intellectual case (see above) to push people into making an exception for that subset. So, for instance, target abortions by girls under 18 under the parental-notification pretext, or target certain procedures by calling them "partial birth" or by invoking the idea that they are more "cruel", or target abortions conducted by government hospitals
  • Make abortion an important aspect when deciding on political candidates. Even without changing the law on abortion, politicians have a lot of ways to change the laws on health and safety. So, for instance, a sympathetic politician can create law that specifies that facilities where abortions are performed should have certain physical characteristics that resemble a hospital. Doing so will put many clinics out of business. Also, such politicians can bring in laws like waiting periods, or mandatory counselling that make the process more tedious.

Check out this article by anti-choice professor Hadley Arkes, writing aboutnwhy he hopes the SCOTUS would decide what it did decide today:

What the Court would be saying in effect is, “We are now in business to consider seriously, and to sustain, many plausible measures that impose real restrictions on abortion.” That would invite a flood of measures enacted by the states. They might be restrictions on abortion after the point of viability, for instance, or even earlier, with the first evidence of a beating heart. Or requirements that abortionists use a method more likely to yield the child alive. Or provisions that ban abortions on a child likely to be afflicted with disabilities, such as Down syndrome.

Each restriction would command the support of about 70 or 80 percent of the country, including many people who describe themselves as pro-choice. And step by step, the public would get used to these cardinal notions: that the freedom to order abortions, like any other kind of freedom, may be subject to plausible restrictions; that it is legitimate for legislatures to enact those restrictions; and that it is, in fact, possible for ordinary folk, with ordinary language, to deliberate about the grounds on which abortions could be said to be justified or unjustified.

Clearly, the Christians have a plan.

I strongly suggest that this is a good time for activism. Write your Congressmen telling them to reverse the law. Write your newspaper, protesting the law. If the Christians see no resistance, it will only embolden them.

Edited by softwareNerd
Fixed typo: pro ---> anti
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I'd just like to point out that:

1) This decision is entirely consistent with the court's decision in Roe v. Wade. (A point that Conservatives and Liberals alike seem to have evaded almost entirely.) The quoted part below is from that opinion.

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a non-resident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’

With respect to the State's important and legitimate interest in the health of the mother, the ‘compelling’ point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 725, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensingof the facility; and the like.

This means, on the other hand, that, for the period of pregnancy prior to this ‘compelling’ point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

With respect to the State's important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

2) Partial Birth Abortion happens after viability. In fact, as the name implies, the abortion happens moments before birth. The baby is fully capable of life outside the womb at the time the procedure is carried out without significant medical help (unlike as in the case of premature babies). Furthermore, most of the objections raised by the ban of abortion are no longer applicable at this point.

I don't know about all of you, but while I have serious reservations about the banning of earlier term abortions, viability is a turning point of sorts for me. We've crossed the point of potentiality into actuality. Thus, I don't see much difference in aborting a fully viable fetus that is in the process of birthing and killing a baby once it has fully left the womb. That puts me in agreement with the court on this issue in both Roe v. Wade and Gonzales vs Carthart

Comments?

P.S. This post does not raise the commerce clause issues touched on by Justices Thomas and Scalia. A proper construction of that clause would almost certainly bar Federal legislation such as this, but allow similar legislation under the constitutional law jurisprudence if passed by individual states.

Edited by Regis
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In fact, as the name implies, the abortion happens moments before birth.
This is completely misleading. The name, which was coined by a religious radical, is itself false -- the correct term is "Intact dilation and extraction". The procedure is generally performed months before birth.
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This is completely misleading. The name, which was coined by a religious radical, is itself false -- the correct term is "Intact dilation and extraction". The procedure is generally performed months before birth.

Then that might change my opinion. It depends on whether or not the procedure is performed before or after viability. I was under the impression that this procedure was only performed late term, if not very late then still third trimester.

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We've crossed the point of potentiality into actuality.

Not exactly. The baby is still connected to the mother via the umbilical cord. It is still dependent on the mother until the umbilical cord is cut.

Also, yes, intact D&E is done only in the third trimester...but a seven month old fetus is still very young and will have some trouble surviving outside of the womb. In the second trimester, a simple D&E is done.

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I think it is an important step, but not the most important step. Would it not make more sense to either induce birth or ride out the last month or so of pregnancy and put the child up for adoption rather than terminate it? One would have to question the rationality of a mother who would terminate in the eighth month of a healthy prenancy for lifestyle reasons. It seems to me that at some point between conception and birth the line is crossed between potentiality and actuality of human life. Why not let medical science determine that point, and allow abortions to take place up to that point. Being the uncle of a child born in the eighth month of pregnancy, I cannot view any third trimester abortion as anything short of infanticide. Supporting abortion up to the moment of birth is barbarism.

First off the health of the mother is always paramount. However, I think there is a compelling reason to limit late-late term, specifically partial-birth, abortions. If the doctor is pulling an almost fully formed baby and then having to punch a hole it it's head to kill it, that's wrong. Why when a mother pushes a baby out it gets all of these rights but if a doctor pulls it out oh well? There is a huge difference between a doctor removing a six month old fetus and an eighth month old baby that may be able to exist independent of it's mother. The question is how to regulate this practice and I think it’s much better to let doctors decide than the government. (Doctors should be able to deny treatment)

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see that Justice Ruth Bader Ginsberg wrote the dissenting opinion. I know that if Justice Ginsburg was the leading advocate for a position of mine, I would rethink my position.
That is a really poor argument ad hominem. Fact is that it is perfectly normal for older U.S. leftists to be in favor of things loosely termed "personal freedoms" and against "economic freedoms" and for the conservatives to be the opposite.

Think about this honestly: if anyone is surprised that Ginsburg supported a woman's right to choose, and is now rethinking their opinion based on Ginsburg's decision, it only means that person does not know much about Ginsburg, nothing more nor less.

The Christians would have one believe that these late terms abortions are mostly viable fetuses and used as a form of birth-control. That is a bogus claim. Many of these fetus are aborted because of judgements that they will not be viable if born. The Christians would rather a woman carry to term a fetus that is going to die or going to be vegetative. The deepest irony is that the Christians would rather force doctors to perform a procedure where the woman runs a larger risk of never being able to be pregnant again; what more proof that of their anti-life worship of suffering?

Edited by softwareNerd
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Think about this honestly: if anyone is surprised that Ginsburg supported a woman's right to choose, and is now rethinking their opinion based on Ginsburg's decision, it only means that person does not know much about Ginsburg, nothing more nor less.

I didnt say I was surprised by it. You can guess on how that woman will vote before she even hears the case. I just happen to have so little respect for her judgment that if her conclusions on any matter match mine, I am taking a second look at mine.

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I didnt say I was surprised by it. You can guess on how that woman will vote before she even hears the case. I just happen to have so little respect for her judgment that if her conclusions on any matter match mine, I am taking a second look at mine.
I already fully expected Ginsburg to vote against the law, so I don't understand how the fact that she voted against the law would get me to take a second look.
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Do you intend to make an argument, or just go on with hollow ad hominems?

This law bans a procedure that is performed almost exclusively on non-viable fetuses. Any judge who has any understanding of individual rights would vote against it.

Edited by softwareNerd
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Here my quick summary of the recent court-case. I'm no lawyer, so if I've got some facts wrong, I welcome correction.

Background: In the U.S., about 91% of abortions are done in the first trimester. Most others (9%) are done in the second trimester when the fetus is not yet "viable". Third trimester abortions are extremely rare and many doctors require documentation showing genetic defects in the fetus before they will consider one. Forty (40) states in the U.S. have laws banning most post-viability abortions. Of the 1.6 million abortions performed in the U.S., only 100 were in the third-trimester. It's safe to say that one typically cannot get a third-trimester abortion in the U.S.

The bottom line here is that Congress decided to target abortions performed using one specific type of procedure, done in the second trimester, on "non-viable" fetuses. That tells one how much of a misnomer "partial birth abortion" really is.

Pretty early in pregnancy, the fetus starts to take on its final shape. A non-expert looking at a fetus would probably not be able to tell how developed it is. Since it is shaped so much like a baby, it's natural for a non-physician to react with disgust to the sight of something so similar to a baby begin destroyed. However, as Dr. Peikoff said, "A picture is not an Argument".

Second trimester abortions: There are various ways in which second-trimester abortions are performed, and almost any non-physician would find it bloody, yucky, and visually too similar to the killing of a child. (But, isn't that why God gave us our conceptual faculty?)

Some doctors inject something that kills the fetus. Since the vagina is not dilated enough, they then have to reach in an remove the fetus in parts.

Others, not wanting to use an injection, remove the fetus in parts, thereby killing it.

Some doctors use a procedure where they try to minimize the number of times they reach in to remove parts of the fetus. They maneuver in way that starts to extract the fetus intact and then kill it when it is partly visible. This is done by crushing the skull. They follow this procedure rather than part-by-part extraction in the belief that reaching into the uterus multiple times would increase the probability of puncturing the uterus, and might also increase the probability of leaving behind some of the fetal tissue inside the uterus. There do not appear to be scientific studies that have proven this, so this opinion of some doctors is contested.

The recent SCOTUS decision: Congress decided to ban that last procedure. The law was challenged and that led to the courts opinion called Gonzalez v. Carhart on April 18, 2007.

The majority opinion was written by Kennedy, and supported by Roberts, Alito, Scalia and Thomas. Here's a summary (my comments in green):

  • The Act only restricted the last type of procedure
  • The court makes clear -- even if the statute did not -- that the other types of procedures are allowed. (That's a good part of the ruling.)
  • Kennedy also stresses that he does uphold a "health of the mother" provision in theory (while denying it in practice), but that unsettled medical opinion allows him to think that at most a very small number of women will have health issues with the use of the alternative.
  • Kennedy justifies the banning of one specific procedure by saying that the visibility of what is being done makes it worse. According to Kennedy, procedures where the destruction of the fetus happens outside of plain view are not prohibited, but the government is fine to prevent procedures where the destruction is done in plain view. He justifies this by saying that the latter can affect public perception of the medical profession and can appear too much like killing a viable child.
  • Kennedy also says that since medical opinion is divided, it is fine for Congress to use the Commerce clause to make the decision in its role as regulator of the medical profession.

(The entire reasoning is ridiculous rationalization.)

Thomas and Scalia, concur with the court's decision, but add two additional points:

  • they think Roe v. Wade was decided unconstitutionally (evidently, these two are the least concerned with the whole "personal freedoms" thing and can't find it in the constitution)
  • they do not need to use the Commerce clause argument as part of their reasoning

Ginsburg, Stevens, Souter, Breyer dissent with the following arguments:

  • The American College of Obstetricians and Gynecologists hold this type of procedure to be necessary and proper in some medical situations and physicians are trained in the procedure
  • In addition, the record shows that Congress did not actually carefully consider the medical evidence before "finding" that safer alternative were available
  • Further, many of the findings by Congress have been shown to be false (the majority opinion agreed with this opinion, but did not find it relevant)
  • Unlike Congress, the lower courts that heard challenges, concluded that the majority of the medical opinion was that the procedure was safer in some cases (e.g. for women who have who have uterine scarring, bleeding disorders, heart disease, or compromised immune systems).
  • The lower courts also found that physicians testifying against the procedure had slim authority for their opinions
  • The court is reversing a principle, by allowing a law that does not allow the woman's health to be taken into account
  • The law does not save a single fetus from destruction, so how can it be said to further the state's interest in life
  • The idea that a visible termination of the fetus is more brutal than one that is done inside the uterus is baseless
  • The majority opinion worries about women being depressed after an abortion, and pretends to protect them by reducing their choices and forcing them into riskier procedures
  • The majority opinion says that viability / non-viability makes no difference to legality, setting up a precedent for further legal attacks on abortions of non-viable fetuses, based on moral/ideological grounds
  • The majority says that the procedure is not required by a large number of women. That is not a legitimate way to decide legality. The real question is whether specific individual women, require this procedure in specific instances, as shown by the medical testimony (Should the court accept the principle that a law that violates only a few people's rights is constitutional?)

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Alex Epstein's op-ed is disappointing because he covers very broadly the philosophic idea behind abortion but does not delve into the scientific matter of D&X, which is indisputable, regardless of one's philosophical/religious beliefs.

They follow this procedure rather than part-by-part extraction in the belief that reaching into the uterus multiple times would increase the probability of puncturing the uterus, and might also increase the probability of leaving behind some of the fetal tissue inside the uterus.

These are two major concerns. If a doctor feels more comfortable not taking these risks, then it makes sense that he shouldn't have to. There are no scientific studies proving this for sure, yes, but that is only because so few D&X procedures are actually even performed.

Any doctor who could choose which procedure to perform would say that there is less risk involved in performing a D&X than a D&E if the woman dilates enough to go through with the labor.

I found a great article written five years ago comparing D&X to D&E. D&E would be the alternative to performing a D&X. (http://dir.salon.com/story/mwt/feature/2002/07/24/late_term/index1.html?pn=1)

Some notable parts:

Back in his office, the doctor demonstrated how powerful a grip can be used with the Bierer forceps. He clamped them down on a surgical scrub gown I held in my hands. "Pull," he instructed. I pulled. "Really, really pull!" he yelled. I really, really pulled. The only way to break the bond between forceps and cloth was to tear the cloth; I inwardly winced as I realized that in the operating room the cloth could be a uterine wall, and with one misplaced pull by the forceps, a perforation could occur.

"This is why I hate overuse of forceps," the doctor commented. "Things tear." Rubbing a hand across his forehead, the doctor looked straight at me: "There are only two kinds of doctors who have never perforated a uterus," he added, "those that lie and those who don't do abortions."

On the D&E procedure:

Overall the piecemeal procedure seemed less dignified and somehow more harsh than the intact version, and the number of times the forceps entered the woman's womb was indeed much higher. The whole procedure took about 15 minutes longer than the intact D&X procedure, but the duration varies from woman to woman.

I would think this would be a much scarier image than a D&X, which is very precise.

One aspect of the D&X procedure that is still up for debate is its link to cervical incompetence. Regardless of the risks, however, if a woman wants to go through with the D&X, she should be able to.

Dr. Peikoff is absolutely right when he said that a picture is not an argument. When I think of "partial birth," I think of a moving, breathing baby. Babies squirm. Babies fidget. Babies cry. The fetus during a D&X procedure is under anesthesia, so it feels nothing (pain stimuli are formed during the 28th week of pregnancy). The fetus is completely limp. So the situation isn't as bad as the conservatives have made it.

Thanks, SNerd, for summarizing the different opinions of the justices. I read the majority opinion and it was pretty complicated: I was afraid I would miss something important while trying to understand what it all meant. Your words were much easier to decipher.

Also: Glenn Woiceshyn wrote a good article (a better one than Epstein) on the PBA ban last year. It still very much applies. http://www.americanchronicle.com/articles/...?articleID=6102

Edited by Mimpy
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Something else I've been thinking about...and this was also mentioned in the article I posted in the previous post: the concept of closure for the woman. If my fetus did not stand a chance of living and I had two options before me (D&E or D&X), then I might go for the D&X if for some reason I really wanted to bury the fetus and found that idea valuable enough to actually go through labor for it. People do this for various reasons, religious and/or personal. Under this law, this isn't possible. I have to crush my fetus into little parts because some people think the alternative is gruesome and inhumane...though essentially the results are the same when concerning the fetus: the pregnancy is terminated.

Edited by Mimpy
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