The eternal bullshit of "partial birth".
Over at LGM, Scott Lemieux hits the nail square on the head:
Opening the Door Wide Open: As Judge Reinhardt points out, the only abortions the federal statute effectively regulates are previability second-trimester abortions, since virtually all of the tiny fraction of abortions performed post-viability are performed when a mother's life is potentially at stake. (It is perhaps worth emphasizing this: you will often hear that such bans affect only post-viability abortions. This is erroneous.) And, as Justice Stevens correctly points out, regulations that proscribe particular methods of abortion while not regulating other methods that produce the same result are completely irrational. What will happen if such statutes are upheld, therefore, is obvious. Some legislators, with the help of pro-life activists, are going to see the obvious: "Wait a minute, we can ban pre-viability D&X and D&E abortions, no health exemption. So why can't we ban pre-viability abortions that use different methods? Perhaps the induced vaginal delivery sounds kind of gross, but from a moral and ethical standpoint there isn't any difference. The fetus is equally dead no matter what method you use." And, of course, this argument will have considerable power because it's obviously correct; to permit abortions at the same stage of fetal development using some methods but not others, although if anything the proscribed methods are safer for the woman, doesn't make a lick of sense. So, in other words, to borrow Scalia's phrase the growth of regulations will stop with "partial-birth" bans "only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court."
It's a testament to the basic bad faith of the anti-abortion crowd that they go about getting anti-choice legislation passed this way. Whether to use an intact ("partial birth" -- where the fetus is delivered whole and killed as it exits the womb) or non-intact (where the fetus is dismembered in-utero and removed in parts from the womb) or induced (where drugs are administered to provoke premature delivery of a dead fetus) -- is a medical decision, one chosen by a qualified medical professional to be safest and most comfortable for the mother. It's positively creepy, positively Big Brother, that the medically ignorant Congress wants to eliminate one of the doctor's major options in these cases. Shades like Dr. Frist diagnosing that videotape, but with far wider ramifications, for actual living people.
A good-faith, incrementalist anti-abortion movement would try to create a universal ban on non-essential post-viability and second-trimester, abortions. Popular opinion would overwhelmingly support banning post-viability abortions, and is ambiguous on second trimester abortions except in the case of serious health risk to the mother or the late discovery of a serious fetal defect. But the anti-abortion lobby isn't particularly interested in promoting this because (1) non-essential post-viability abortions never occur in real life, and non-essential second-trimester abortions are rare. (Besides the fact that post-viability abortions are already illegal in 41 states, the chance of finding both a doctor and a woman willing to commit to such a thing is virtually nil); and (2) banning later-term abortions without an exeption for maternal health and/or fetal defect wouldn't just run up against the most popularly secure part of Roe, it would make the anti-choice movement look positively barbaric.
So instead, the anti-choicers hide the barbarism behind things like demands for freedom of speech (to protest clinics) and, in this case, outrage over the ickiness of a doctor collapsing a fetal head during delivery (although I fail to see why this is ickier than in-utero dismemberment, particulary from the woman's perspective). By focussing on procedure, the anti-choicers reap a twofer. They make a major cut into the roughly 10% of abortions that occur in the second trimester, the vast majority of which occur strictly for health reasons. And they play to people's worst sanctimonious emotions.
The pro-choice movement was foolish to implicitly accept this procedure-focus. Clinton, however otherwise strong he was on the practicalities of abortion (FACE Act, anyone?) was wrong to promise to sign a partial-birth ban containing a health exemption. Even though the health-exemption makes all the difference in practice (so wingers desperately want to get rid of it), the principle itself was always wrong and was eventually going to come home to roost, as (Scott points out) it has now with the Bush Court. The fact is: late-term abortions are icky, horrible, painful, even "tragic" as HRC put it. They are virtually never undertaken lightly. When they are undertaken, it is almost always because the alternative -- the risk of death or prermanent injury in childbirth, the risk of a badly deformed, burdensome, suffering and/or unwanted baby -- is far, far worse.
In another world, I might be sympathetic to pro-life arguments. Fetal rights do carry some weight against a woman's right to control her body, and at some point in the pregnancy and under certain health conditions, the balance of the two must change (few people would support the right to abort a healthy fetus from a healthy mother at 30 weeks for instance, something that's uncontroversial under Canadian law simply because it never happens.). Reasonable people can debate when the balance changes. But the people who are driving to destroy abortion rights don't want to argue in the real world in which abortion is a personal, private, painful choice that very often means the end of a wanted pregnancy for the woman (and still, of course, commands majority support among the population). They don't care about the balance of responsibilities, about the humane, socially acceptable solution to a moral quandary on which opinions vary wildly. They want to build the strawman -- the over-educated, tennis-bracelet-wearing, latte-drinking dilletante or the irresponsible, socially parasitic welfare-queen traipsing down to the clinic when her clothes get a bit too tight -- to doom all women to childbirth regardless of the consequences for mother, baby or society. They want to do it based on moral calculations that vast swathes of the electorate do not subscribe to. And they'll be as sleazy and sneaky about it as possible.
Opening the Door Wide Open: As Judge Reinhardt points out, the only abortions the federal statute effectively regulates are previability second-trimester abortions, since virtually all of the tiny fraction of abortions performed post-viability are performed when a mother's life is potentially at stake. (It is perhaps worth emphasizing this: you will often hear that such bans affect only post-viability abortions. This is erroneous.) And, as Justice Stevens correctly points out, regulations that proscribe particular methods of abortion while not regulating other methods that produce the same result are completely irrational. What will happen if such statutes are upheld, therefore, is obvious. Some legislators, with the help of pro-life activists, are going to see the obvious: "Wait a minute, we can ban pre-viability D&X and D&E abortions, no health exemption. So why can't we ban pre-viability abortions that use different methods? Perhaps the induced vaginal delivery sounds kind of gross, but from a moral and ethical standpoint there isn't any difference. The fetus is equally dead no matter what method you use." And, of course, this argument will have considerable power because it's obviously correct; to permit abortions at the same stage of fetal development using some methods but not others, although if anything the proscribed methods are safer for the woman, doesn't make a lick of sense. So, in other words, to borrow Scalia's phrase the growth of regulations will stop with "partial-birth" bans "only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court."
It's a testament to the basic bad faith of the anti-abortion crowd that they go about getting anti-choice legislation passed this way. Whether to use an intact ("partial birth" -- where the fetus is delivered whole and killed as it exits the womb) or non-intact (where the fetus is dismembered in-utero and removed in parts from the womb) or induced (where drugs are administered to provoke premature delivery of a dead fetus) -- is a medical decision, one chosen by a qualified medical professional to be safest and most comfortable for the mother. It's positively creepy, positively Big Brother, that the medically ignorant Congress wants to eliminate one of the doctor's major options in these cases. Shades like Dr. Frist diagnosing that videotape, but with far wider ramifications, for actual living people.
A good-faith, incrementalist anti-abortion movement would try to create a universal ban on non-essential post-viability and second-trimester, abortions. Popular opinion would overwhelmingly support banning post-viability abortions, and is ambiguous on second trimester abortions except in the case of serious health risk to the mother or the late discovery of a serious fetal defect. But the anti-abortion lobby isn't particularly interested in promoting this because (1) non-essential post-viability abortions never occur in real life, and non-essential second-trimester abortions are rare. (Besides the fact that post-viability abortions are already illegal in 41 states, the chance of finding both a doctor and a woman willing to commit to such a thing is virtually nil); and (2) banning later-term abortions without an exeption for maternal health and/or fetal defect wouldn't just run up against the most popularly secure part of Roe, it would make the anti-choice movement look positively barbaric.
So instead, the anti-choicers hide the barbarism behind things like demands for freedom of speech (to protest clinics) and, in this case, outrage over the ickiness of a doctor collapsing a fetal head during delivery (although I fail to see why this is ickier than in-utero dismemberment, particulary from the woman's perspective). By focussing on procedure, the anti-choicers reap a twofer. They make a major cut into the roughly 10% of abortions that occur in the second trimester, the vast majority of which occur strictly for health reasons. And they play to people's worst sanctimonious emotions.
The pro-choice movement was foolish to implicitly accept this procedure-focus. Clinton, however otherwise strong he was on the practicalities of abortion (FACE Act, anyone?) was wrong to promise to sign a partial-birth ban containing a health exemption. Even though the health-exemption makes all the difference in practice (so wingers desperately want to get rid of it), the principle itself was always wrong and was eventually going to come home to roost, as (Scott points out) it has now with the Bush Court. The fact is: late-term abortions are icky, horrible, painful, even "tragic" as HRC put it. They are virtually never undertaken lightly. When they are undertaken, it is almost always because the alternative -- the risk of death or prermanent injury in childbirth, the risk of a badly deformed, burdensome, suffering and/or unwanted baby -- is far, far worse.
In another world, I might be sympathetic to pro-life arguments. Fetal rights do carry some weight against a woman's right to control her body, and at some point in the pregnancy and under certain health conditions, the balance of the two must change (few people would support the right to abort a healthy fetus from a healthy mother at 30 weeks for instance, something that's uncontroversial under Canadian law simply because it never happens.). Reasonable people can debate when the balance changes. But the people who are driving to destroy abortion rights don't want to argue in the real world in which abortion is a personal, private, painful choice that very often means the end of a wanted pregnancy for the woman (and still, of course, commands majority support among the population). They don't care about the balance of responsibilities, about the humane, socially acceptable solution to a moral quandary on which opinions vary wildly. They want to build the strawman -- the over-educated, tennis-bracelet-wearing, latte-drinking dilletante or the irresponsible, socially parasitic welfare-queen traipsing down to the clinic when her clothes get a bit too tight -- to doom all women to childbirth regardless of the consequences for mother, baby or society. They want to do it based on moral calculations that vast swathes of the electorate do not subscribe to. And they'll be as sleazy and sneaky about it as possible.
0 Comments:
Post a Comment
<< Home