Linda Greenhouse of the New York Times reports, below, on the latest abortion case before the Court, now the Roberts Court with Sam Alito, both new numbers appointed by the Bush administration and reflections of its right-wing fundamentalist socially conservative base. Translation: don't expect the Roe-Casey right to come through unscathed. If allowed to stand at all, it will continue to be a hollow-shell of a right, one that the late Chief Justice Rehnquist characterized as a Potemkin Village of a case.
Catherine the Great of Russia had a minister who, to show her how wonderful the country was faring during a royal procession had new building facades erected along the main street of villages, only to be dismantled and reinstalled in the next village. Hence Potemkin Village as metaphor for mask, appearance belying reality.
It's hard to believe that government would try to pull the wool over our eyes, isn't it? Or that government would just as soon see the world through rose-tinted lenses.
Victory is just around the corner in Iraq, too.
But I digress, or do I?
How does one go about gutting the Roe-Casey right to an abortion at the request of the pregnant person? By putting obstacles and conditions on the exercise of the right. Add requirements of a waiting period, for example. Women in rural areas have to travel to obtain an abortion, which means leaving work and often the parental home for an overnight stay in a distant city. By requiring waiting periods (for further reflection after mandatory education, read propaganda sessions) the young woman must either return home or spend money for lodging which she may not have.
In theory she has the right, but in practice she can't afford the hassle. Result: the opponents of abortion force her to have the child.
Do the opponents of abortion rush to help support this child? Don't be silly. Since pregnancy is typically the result of moral impurity, the woman should be punished for making bad decisions by being forced to raise this child for the next eighteen years at her own expense.
This will teach her, and others, that sin does not pay.
We have our own home-grown Taliban, our own home-grown terrorists. Why do we need to go abroad seeking monsters to slay? John Quincy Adams so put the question years ago.
Other people's boogie-men are always much worse than our own, wouldn't you agree?
***
Up until 1973, when the Roe v. Wade decision issued, abortion was a criminal undertaking. Doctors who provided abortion service to needy women (called "abortionists" or "abortion doctors" or simply "the defendant" in an abortion or homicide prosecution) functioned in an in-between world, the good, clean world of respected doctor and an underworld of crime and criminals.
Then there were the neighborhood women, and men, who provided the so-called "back alley" abortions which frequently resulted in perforated uterus, sepsis, uncontrolled bleeding, post-op shock, and death.
The woman was on her own after the procedure. Sometimes she chose to forgo these evil choices in favor of a coat hangar or button-hook at home, with equally fatal results. Or perhaps she accidentally sterilized herself.
Hospitals were allowed to perform "therapeutic abortions" to protect the life of the mother whose pregnancy put her life at risk, or where she was the victim of rape, say by her father.
Then the medical staff could perform the abortion, legally.
In practice, this translated to the idea that a doctor could perform, or have performed, three unchallenged abortions: for his wife, his daughter, and his mistress.
As a result of the constant stream of tragic back-alley abortions, usually on poor women (those who could afford it went to Tijuana, Mexico) a reaction slowly grew that something was wrong with a system of law that condemned women to full-pregnancy and motherhood who couldn't afford it, economically or mentally, or socially, which were all intertwined, of course.
The constitutional challenge turned on the notion that a woman's decision to have sexual intercourse and to end the resulting pregnancy was a matter of her own privacy. She had the right to control her own bodily and reproductive functions. The neighbors, acting through government, had no right to impose their personal moral, social, and religious views on her by law. The privacy right in issue was one enunciated by Justice William O. Douglas in Griswold v. Connecticut, of the famous Warren Court, in 1964, a court which famously protected individual rights over rights asserted by government.
One of the major and surprising effects of Roe v. Wade (1973) was the earthquake it triggered among those who believed that women should not have the right to control their own body, reproduction, and freedom to avoid motherhood, or further motherhood. These are the people who become the American Taliban.
The Roe-Abortion issue quickly became a litmus test for politicians, just as communism had become a litmus test for an earlier generation. You were either hard line in either direction or soft on abortion or communism. Better dead than Red, Pro-life, Pro-choice. The anti-abortion people, today's religious or conservative right, or both, would have their button pushed in mass-mailers, whereupon they would contribute bucks by the millions and turn out to vote. This is the big political result of Roe v. Wade. It galvanizes political support in the form of money and votes. Preachers rail against it. Newspapers editorialize for and against.
This has led at least one constitutional scholar to prefer that Roe had never been decided, for it has dragged the country to the right, making it easier for hard-line conservatives such as George Ashcroft and George Bush to take the country by storm, making it all that much easier to go hunting monsters abroad to destroy, such as the Taliban in Afghanistan and terrorists allegedly holed up in Iraq.
Perhaps, the argument must go, we were better off left to our own local devices. There weren't all that many local abortion prosecutions, and the nation wasn't spiraling down the toilet.
Perhaps this is the argument in favor of hypocrisy.
It's all a bit too crazy for me to fathom.
But why should things become clear now?
Kennedy’s Choice
The Roberts Court Takes on Abortion
WASHINGTON
THE arguments the Supreme Court will hear on Wednesday on the constitutionality of the federal Partial-Birth Abortion Ban Act promise much more than a resumption of a familiar debate over a method of terminating a pregnancy.
In defining the permissible limits on access to abortion, only six years after declaring a similar restriction unconstitutional in a case from Nebraska, the court must go a long way toward defining its stance toward precedent, its relationship to Congress, and its view of its own role in the constitutional system. As it decides the new cases, the still-emerging Roberts court will inevitably be defining itself.
That much is clear from briefs submitted to the court by the abortion rights side, where many believe that their only hope of prevailing lies in persuading Justice Anthony M. Kennedy to reconsider the position he took in an emotionally laden dissenting opinion in the Nebraska case. Justice Kennedy said then that states should be able to outlaw “a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life.”
Justice Sandra Day O’Connor, who retired in January, voted with the 5-to-4 majority. No one knows whether either of the two newest justices, her successor, Samuel A. Alito Jr., or Chief Justice John G. Roberts Jr., might step into her shoes. But the fate of the federal law may rest with Justice Kennedy, the only one of the four dissenters who accepts the court’s precedents on the basic right to abortion.
Several arguments are clearly, if implicitly, addressed to him, aimed at shifting the focus away from an abortion technique and toward broader jurisprudential issues in which Justice Kennedy is deeply invested.
For example, the federal law is depicted as an example of Congressional defiance of the court’s authority to interpret the Constitution. The law lacks the exception for a pregnant woman’s health that the court held in the Nebraska case to be constitutionally required; Congress simply declared that the procedure was never necessary.
Justice Kennedy is perhaps the leading expositor among the current justices of the court’s primacy in constitutional interpretation. He wrote the landmark decision in 1997 that rejected Congress’s effort in the Religious Freedom Restoration Act to trump the court’s view of the First Amendment’s “free exercise” clause.
And several briefs quote from Justice Kennedy’s majority opinion in Lawrence v. Texas, the 2003 gay rights case, to the effect that the government may not adopt one view of morality and invoke it to criminalize the private choices made by those who take another view.
The libertarian Cato Institute, which provided intellectual ammunition for the Rehnquist court’s federalism revolution, filed a brief describing the federal law as an example of “expansive and intrusive federal regulation” and as an effort by Congress to open “an equilibrium-destroying loophole in the constitutional landscape.” Justice Kennedy has consistently voted with the states’ rights side of the court’s federalism debates.
Three federal appeals courts have considered the federal law, and all three have declared it unconstitutional on the basis of the Nebraska decision.
The court is hearing the Bush administration’s appeal of two of those rulings. The administration argues that the federal law and the Nebraska ruling can coexist if the court recognizes an obligation to defer to Congress’s judgment that a health exception is unnecessary. But if the court finds otherwise, Solicitor General Paul D. Clement will argue, then the Nebraska precedent, not the federal law, should fall.
Both sides’ briefs reveal an interesting role reversal on the basic factual question of how common the procedure outlawed in the law actually is.
Leaders of abortion rights groups, caught by surprise when the National Right to Life Committee first publicized the procedure, known medically as “intact dilation and evacuation,” initially said it was very rare.
But now, medical organizations and medical school professors who have filed briefs attacking the law say that in fact, doctors performing abortions in the second trimester, when about 10 percent of all abortions take place, often try to remove the fetus in as intact a condition as possible. The goal is to avoid complications caused by the repeated insertion of surgical tools and by sharp bone fragments that can injure the patient internally.
The doctors say it is not always possible to tell in advance whether intact removal can be achieved, or whether the process of extraction will dismember the fetus. In any event, they say, intact and “disarticulated” abortions are “part and parcel of the same procedure,” meaning that doctors could not know when they might be placing themselves in legal jeopardy.
Abortion opponents are now the ones who describe the procedure as rare, seeking to offer reassurance that banning it would not deprive women of access to safe second-trimester abortions.
In fact, in their eagerness to portray the procedure as aberrant, the statute’s sponsors declared in the preamble that “no medical schools” teach it. In fact, it is taught at leading medical schools including Columbia, Cornell, Yale and New York University.
The administration describes the law as taking “only the limited step of proscribing a rarely used and inhumane abortion procedure resembling infanticide.”
“Infanticide” is a potent label, frequently used by abortion opponents. One brief describes the procedure as “killing a child in the birth process.” While this description is true in the sense that uninterrupted gestation leads to birth — “He not busy being born is busy dying,” in the words of the Bob Dylan song — it is well off the mark as a description of what actually occurs.
The standard procedure used by Dr. Warren M. Hern, the author of a widely consulted textbook on abortion and one of the leading providers of abortions after 18 weeks of pregnancy, is to “induce fetal demise” by injecting a drug one or two days before the abortion.
“The cognitive construct of the law has nothing to do with current medical practice,” Dr. Hern, who is not involved in the cases, said last week.
Comments