Oh Bloody Hell

Wednesday, April 18, 2007

The Supreme Court Bush has built has now proclaimed "partial birth" abortion illegal.

A divided U.S. Supreme Court upheld a nationwide ban on ``partial birth'' abortion, marking a shift on the issue and underscoring the impact of President George W. Bush's two high court appointments.

The justices, voting 5-4, said the 2003 law is constitutional even though there is no exception for cases posing a risk to the mother's health. The court also rejected claims that the Partial Birth Abortion Ban Act is so vaguely worded it would force doctors to forgo a commonly used, constitutionally protected abortion technique for fear of prosecution.

``The government has a legitimate and substantial interest in preserving and promoting fetal life,'' Justice Anthony Kennedy wrote for the majority.

But not women's lives, apparently. That last statement sure sounds to me like a harbinger of horrors to come.

Sasha has collected some of the salient bits from Justice Ginsburg's decent. My favorite parts:

Because of women's fragile emotional state and because of the "bond of love the mother has for her child," the Court worries, doctors may withhold information about the nature of the intact D&E procedure. . . Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.

We're also prone to "hysteria" you know. Thank goodness there are such big strong men to protect us from our health care.

Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label "abortion doctor."

Well I'm glad they entered into their deliberations with such seriousness and lack of bias. Oy. We are in trouble.


David said...

I haven't got that far reading through the decision. But I will say this: the judicial system is something that is a great supporter of truth. They have to lay out exactly what their supposed reasons are, the precedents and the way they have applied them. They have to look like judges and it's hard to lie in these situations.

If only other areas of life had such a rigorous approach to discovering the truth as you see in these decisions and their dissents.

Even at the worst of times, as with the Gore vs Bush decision, the most partisan hackworthy decision I've read from the US SC, at least this process makes sure everyone can see the liars are lying. (The most obvious giveaway in that case being when they got through all their BS and then said this isn't a precedent for any future case).

And even reading what I have so far the decision, I have to say looks bad, but it's not Gore vs Bush bad.

The argument is that this type of surgery is not medically necessary because there are other ways of doing the same thing. Congress passed a law saying that this operation was yucky in their opinion and therefore ought to be illegal. They get to do shit like that because they are congress.

The argument that it's cool to ban this operation because it's redundant is doubtful but the distinction is pretty fine. Frankly you read this thing and you realise it isn't going to make a damn bit of difference to anyone. Probably. That was the intent when it was worded because they wanted it to be constitutinal and the only way to do that is make sure it do a damn thing.

The argument is therefore over whether it in fact does do anything at all wrt preventing abortions. Those against abortion ironically have to argue it doesn't. I don't think they make the argument but it is a pretty fine distinction.

For example there is a clause which says the law doesn't operate if the life of the mother is at stake but it then specifies as long as it's a physical reason it's at stake. Why? I assume they didn't want folks arguing that if a woman didn't have an abortion it might harm her economically and that might lead tio suicide which would be fatal and thus basically argue that all pregnancy is potentially life threatening. I don't know if anyone ever has argued that but in any case by adding that extra clause which nobody knows what it's implications are, they opened an argument to say that the law doesn't allow for this kind of abortion even if medically necessary. If that is true, and that would have to mean that for some odd reason the other 3-4 methods of abortion were not available, the law certainly is unconstitutional.

It really is quite a whiney sort of argument overall. it's like Oh come on! throw us a bone! you don't need this shitty operation anyway - there's better surgeries these days - throw us a bone so we look good to the religious nutcases.

The lower courts looked at the odd wording and said, well medical opinion is divided on whether this surgery might possibly be of use under some odd circumstances where it's a tad better than one of the others. So congress can't pretend to know this surgery will never be useful. The SC argues that when the opinions is so finely divided congress can swing it and that if things change medically or if congress turns out to be wrong the relief would be for the doctor to just go ahead and then in court argue that congress got it wrong.

Well that's just an example. There were other criticisms of the law's constitutionality which were similar. eg that the law was so ambiguous it would make it hard for doctor's to operate and that the law would accidentally ban other similar procedures that really are used but kill the foetus before pulling it out. That latter argument is probably the strongest IMO. It's all pretty close.

And I haven't read the dissent yet. it's always best to read the dissent in ANY debate. As I've said here before not because you like the idea of free speech for it's own sake but because you want to get at the truth.

But overall my opinion is this law was designed to look good for the religious nut cases but to do just about nothing at all in terms of abortion. The proponents have to argue it acheives nothing at all and those against argued, no, it did a tiny little bit and is therefore illegal.

So as a generic attack on the right to an abortion this is all a non-starter.

If anyone actually sincerely supports the bill I have to say it's a reasonable law, with the kinks removed anyway, to make it clear it doesn't ban anything useful. I agree that the surgery in question is really icky and 99.9% of the time unneccessary.

At any rate unlike Bush vs Gore they are prepared to say this one sets legal precedent. They didn't just fuck the system. It looks like a poor decision but not a Bush vs Gore.

David said...

At MLW they seem confused on whether there is an exception for the life of the mother or not. The answer is "sort of".

I wonder if it wasn't deliberatel;y worded oddly to guarantee reaction headlines that would make religious nutcases secure that this was a law that really meant business --- which it is NOT.

On both sides there's a lot to be gained from boosting this law into something it isn't. It's all about turnout these days so both sides seek "issues" which the economic elites couldn't give a crap about so they can be used to stir up the plebs.

David said...

How much better would the world be if other groups had to follow the rules that Republican judges have to? Say if the president had to explain and argue (with precedent) his reasosn for going to war, or the legislature had to explain why they supported a law. Or even if feminists had to explain why they supposedly believed women were "oppressed".

The nature of a judge is so oppposed to the nature of Conservatism / Republicanism that when both meet you have to wonder what goes on. One wants to say X is true by fiat and prejudice, the other has to give strict reasoning at every step.

With Gonzales you look at him and wonder if he ever had to try and win a normal case in court -- he's certainly lost enough against his own judges over Guantanomo etc. For the most part Republican judges. And yet you look atbthese doubtful decisions and aginand again it's Republicans who try to short cut justice, subtley or in the case of Gore vs Bush obvious like a brick wall across an interstate.