WE WILL PROTECT you for your own good: The U.S. Supreme Court’s bizarre decision in Gonzales v. Carhart and Gonzales v. Planned Parenthood reintroduces to American jurisprudence the paternalistic motivation that characterized decisions about women from a century ago.
For the first time since abortion was legalized in 1973, the Court upheld a federal law, most commonly referred to as the “Partial-Birth Abortion Ban Act of 2003,” which bans — with no exception for safeguarding a woman’s health — a medical procedure that the American College of Obstetricians and Gynecologists considers the safest option in particular cases.
These are usually situations in which women have medical conditions such as uterine scarring, bleeding disorders, heart disease or compromised immune systems, pregnancy-related conditions or after the pregnant woman learns the fetus has severe hydrocephalus. There’s a good reason why the 2003 law contains no exception to save a woman’s health or her life: The political thugs who wrote the law know perfectly well the procedure is used only in those circumstances.
Although the 2003 law incorrectly states that no colleges teach the procedure, the majority opinion brushed aside this and other inaccuracies. Perhaps the most important cornerstone of the opinion is the notion that women who have abortions come to regret their decision. But the minority opinion, written by Judge Ruth Ginsburg, remarks that neither evidence nor observable reality can conclude it is more dangerous to a woman’s long-term mental health than delivering and parenting a child that she did not intend to have.
The majority opinion, written by Judge Anthony Kennedy, described in detail the intact dilation and extraction (D&E) procedure of puncturing of the fetus’ brain, concluding this “is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.” Further, it asserted that Congress, in passing the law, took a “moral” stand against the further coarsening of society, the integrity and ethics of the medical community and to protect women who might come “to regret their choice to abort the infant life they once created and sustained ... Severe depression and loss of esteem can follow.”
At the same time the opinion stated it is not outlawing other second- or third-trimester abortions, procedures in which the fetus is destroyed by other methods. But why wouldn’t subsequent rulings ban these procedures, or more likely allow states to do so? What about other laws written to instruct women to take this decision and not that one so they will not regret it later? Come to think of it, why apply these rules strictly along gendered lines? Shouldn’t men be forbidden to make choices others consider they might later regret?
Everything about the law, including its name, loads the dice against a woman seeking an abortion. Let’s start with the term “partial-birth abortion.” There is no such medical term; it’s the radical right’s label for intact D&E. Everything about the majority opinion goes along with this loading of the dice. One finds physicians who testify against the ban described as “abortion doctors.” The text most frequently refers to a fetus as an unborn child, an infant or a baby.
The decision is chilling for a society in which abortion has been legal for almost 35 years. Judge Kennedy noted, in the majority opinion, that “between 85 and 90 percent of the approximately 1.3 million abortions performed each year in the United States take place in the first three months of pregnancy ...” He failed, however, to document the difficulty many women have in obtaining one. After all, most counties throughout the United States lack the facilities and women without a health insurance plan that covers abortion have even greater difficulty.
Nor does Judge Kennedy mention the difficulty of rearing children in a society where decent health care, housing and schools are dependent on a good job and a storehouse of private resources. Yet the learned jurist can candidly remark that upholding the congressional ban will “encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions.”
According to the five judges in the majority, one of the highest social goals should be getting rid of late-term abortions. But the reality is that most women who get abortions late in their pregnancy do so because of highly specific and difficult circumstances: the woman was poor and it took her a while to get the money together, the woman was from a conservative background and denial was her coping strategy, health problems arose during her pregnancy or with the discovery of severe fetal abnormalities.
Judge Ginsburg’s minority opinion outlines four advantages that intact D&E has over other procedures. All indicate that the procedure is safer because it is less intrusive:
“First, intact D&E minimizes the number of times a physician must insert instruments through the cervix and into the uterus, and thereby reduces the risk of trauma to, and perforation of, the cervix and uterus—the most serious complication associated with nonintact D&E.
“Second, removing the fetus intact, instead of dismembering it in utero, decreases the likelihood that fetal tissue will be retained in the uterus, a condition that can cause infection, hemorrhage and infertility.
“Third, intact D&E diminishes the chances of exposing the patient’s tissues to sharp bony fragments sometimes resulting from dismemberment of the fetus.
“Fourth, intact D&E takes less operating time than D&E by dismemberment, and thus may reduce bleeding, the risk of infection, and complications relating to anesthesia.”
The recent Supreme Court decision, upholding a congressional ban on a particular abortion procedure, hands the right wing what may prove to be a pyrrhic victory. The ban won’t directly affect the vast majority of women seeking abortion because they will still able to obtain one in the first weeks of pregnancy, and under safe conditions. By comparison, the 1980 Supreme Court decision (Harris v. McCrae) — which upheld the Hyde Amendment and limited Medicaid funding for abortion only to cases where the woman’s life was endangered — has had a much greater impact. In that case the Court concluded that the government had no “affirmative funding obligation.”
The latest decision will have a more profound indirect effect, precisely because it so blatantly launches the next frontal assault on women’s autonomy. By attempting to take the “moral” high ground, replacing a concern for women’s health with a pre-birth reverence for life, politicians of both parties will be hard at work introducing more repressive legislation, particularly at the state level.
But this decision horrifies those who support women’s rights, just as the ban on abortion in South Dakota mobilized people to defeat the newly passed law. Let the voices opposing this decision reclaim the disputed territory, toppling not just the decision of the Supreme Court majority in this case, but void the reactionary 1980 decision as well.
While the Supreme Court majority decision gleefully pressures women to bear children as if it were a scene straight out of Margaret Atwood’s The Handmaiden’s Tale, the legalization of first-term abortion in Mexico City at the end of April — despite vicious denunciations by the Catholic Church and the right wing — indicates that no matter how long the struggle, women and their supporters can roll back the hypocrisy and paternalism that deny women control of their bodies and their lives.
ATC 128, May–June 2007