![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
fr_defenestratoIt must be noted that the Partial-Birth Abortion Ban Act (the Act) of 2003 already does and always has included an exception for the life of the mother (life, not health):
[The ban] does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
It's also worth noting that the SCOTUS today decided that the cited legal challenges to the Act—Federal District Court decisions—were legally unsound, which is not the same thing as saying the Act itself is sound. In fact, the majority opinion states that "some of the Act's recitations are factually incorrect and some of the important findings have been superseded." The decision makes it clear that the Court predicates these findings on the assumptions that physicians have viable alternatives for ensuring the mother's health; at one point the Court explicitly suggests that the Act can be circumvented by lethally injecting the fetus before delivery:
...if intact D&E is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act's prohibition only applies to the delivery of 'a living fetus' 18 U. S. C. ยง1531(b)(1)(A).
Finally, the SCOTUS explicitly affirmed the Roe tenet as stated in Casey that "Before viability, a State 'may not prohibit any woman from making the ultimate decision to terminate her pregnancy.'"
In short, this ruling is discouraging, but I don't find it quite as disastrous as some folks perceive. I do have a medical question that's not immediately googlable (user error, I know) and that certainly speaks to the political reaction to this decision: Is there ever a circumstance when intact D&E is the ONLY viable method of terminating a pregnancy?
(Honestly? Though I don't know the answer to the above question, I tend to think of partial birth abortion as the assault weapon, the AK-47 of this debate, in the sense that, IF Roe had affirmed that a woman's right to an abortion included the right to kill an infant brought naturally and successfully to term by having the whole family do a Greek peasant dance on its head, the pro-choice lobby would now be defending that right as a slippery-slope thing. I realize this view may be unpopular—in my defense, I find the pro-life movement, its rhetoric, and its misinformation campaign morally reprehensible (really, women used to give birth to dinosaurs? and the Supreme Court outlawed it? How sad!)—but I would like to hear any flavor of argument that a woman should be able to choose, for no other reason than her own convenience, to terminate a pregnancy on the cusp of viability, e.g., week 34. Anyone?)
Still, the SCOTUS decision is chilling... This here, frinstance: "Whatever one's views concerning the Casey joint opinion, it is evident a premise central to its conclusion—that the government has a legitimate and substantial interest in preserving and promoting fetal life—would be repudiated were the Court now to affirm the judgments of the Courts of Appeals." I guess I'd have to go back to the Casey opinion re Roe, but I have no idea what in the hell the argument could be for the federal government's "legitimate and substantial interest in preserving and promoting fetal life"—da fuck? are we the Vatican all of a sudden? Don't answer that.
And this one: "[The Partial-Birth Abortion Ban Act of 2003] applies both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism within the womb, whether or not it is viable outside the womb." Whoa thar! Settle down, you ornery magistrates. You're getting rambunctious. None of this "Any durn fool knows what a boojum is, by gum!" stuff here.
"The government undoubtedly 'has an interest in protecting the integrity and ethics of the medical profession.'" (OMG, that's like having Karl Rove, Ann Coulter, and Ted Haggard as character references.)
And of course the leading candidates for Dickwad of the Millennium, Clarence Thomas and Antonin Scalia, concurred with the Kennedy decisions, stated that "that the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution." (Their further assertion that the issue of the "permissible exercise of Congress' power under the Commerce Clause is not before the Court" seems unimpeachable to me—"The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it—why would any of the justices have permitted discussion thereof?)
I haven't read the dissent yet, so maybe more later...
[The ban] does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
It's also worth noting that the SCOTUS today decided that the cited legal challenges to the Act—Federal District Court decisions—were legally unsound, which is not the same thing as saying the Act itself is sound. In fact, the majority opinion states that "some of the Act's recitations are factually incorrect and some of the important findings have been superseded." The decision makes it clear that the Court predicates these findings on the assumptions that physicians have viable alternatives for ensuring the mother's health; at one point the Court explicitly suggests that the Act can be circumvented by lethally injecting the fetus before delivery:
...if intact D&E is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act's prohibition only applies to the delivery of 'a living fetus' 18 U. S. C. ยง1531(b)(1)(A).
Finally, the SCOTUS explicitly affirmed the Roe tenet as stated in Casey that "Before viability, a State 'may not prohibit any woman from making the ultimate decision to terminate her pregnancy.'"
In short, this ruling is discouraging, but I don't find it quite as disastrous as some folks perceive. I do have a medical question that's not immediately googlable (user error, I know) and that certainly speaks to the political reaction to this decision: Is there ever a circumstance when intact D&E is the ONLY viable method of terminating a pregnancy?
(Honestly? Though I don't know the answer to the above question, I tend to think of partial birth abortion as the assault weapon, the AK-47 of this debate, in the sense that, IF Roe had affirmed that a woman's right to an abortion included the right to kill an infant brought naturally and successfully to term by having the whole family do a Greek peasant dance on its head, the pro-choice lobby would now be defending that right as a slippery-slope thing. I realize this view may be unpopular—in my defense, I find the pro-life movement, its rhetoric, and its misinformation campaign morally reprehensible (really, women used to give birth to dinosaurs? and the Supreme Court outlawed it? How sad!)—but I would like to hear any flavor of argument that a woman should be able to choose, for no other reason than her own convenience, to terminate a pregnancy on the cusp of viability, e.g., week 34. Anyone?)
Still, the SCOTUS decision is chilling... This here, frinstance: "Whatever one's views concerning the Casey joint opinion, it is evident a premise central to its conclusion—that the government has a legitimate and substantial interest in preserving and promoting fetal life—would be repudiated were the Court now to affirm the judgments of the Courts of Appeals." I guess I'd have to go back to the Casey opinion re Roe, but I have no idea what in the hell the argument could be for the federal government's "legitimate and substantial interest in preserving and promoting fetal life"—da fuck? are we the Vatican all of a sudden? Don't answer that.
And this one: "[The Partial-Birth Abortion Ban Act of 2003] applies both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism within the womb, whether or not it is viable outside the womb." Whoa thar! Settle down, you ornery magistrates. You're getting rambunctious. None of this "Any durn fool knows what a boojum is, by gum!" stuff here.
"The government undoubtedly 'has an interest in protecting the integrity and ethics of the medical profession.'" (OMG, that's like having Karl Rove, Ann Coulter, and Ted Haggard as character references.)
And of course the leading candidates for Dickwad of the Millennium, Clarence Thomas and Antonin Scalia, concurred with the Kennedy decisions, stated that "that the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution." (Their further assertion that the issue of the "permissible exercise of Congress' power under the Commerce Clause is not before the Court" seems unimpeachable to me—"The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it—why would any of the justices have permitted discussion thereof?)
I haven't read the dissent yet, so maybe more later...
