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Thursday, April 19, 2007

SCOTUS rules on "partial birth abortion"

Here my quick summary of the recent court-case. I'm no lawyer nor a doctor, 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 -- lol?)

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 (they're all for "economic freedom")

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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