LOS ANGELES – The Bush/Roberts Court has struck.
Congress is practicing medicine and the Court has decided to let it, in direct conflict with its own precedent.
Five members of the Supreme Court have decided that Congress knows more about obstetrics and gynecology than the doctors in the American College of Obstetrics and Gynecology do. If Congress doesn’t think a procedure is ever medically necessary, and doctors do, isn’t it obvious that Congress must be right?
Who do you trust with your health, your doctor or your congressman?
The Supreme Court is not a voting issue for many people; you know a candidate is digging when he starts explaining that the Supreme Court is up for grabs. But it should be, as Wednesday’s Supreme Court decision to uphold the ban on partial-birth abortions demonstrates.
The same case came out the opposite way when Sandra Day O’Connor was on the Court. A Nebraska law virtually identical to the federal ban upheld this week was struck down by the Court in 2000, in an opinion by Justice Stephen Breyer.
For her part, Justice O’Connor, then the swing vote on the Court, drew a virtual roadmap for legislators to follow in passing a constitutional ban. The critical point was that there must be an exception for the health of the mother, so that doctors would be free to use the procedure where it was necessary for the woman’s health.
Partial birth abortion is not a medical term. It is a slogan invented by smart Republican activists and legislative staffers who were looking for a new approach to undermining Roe v. Wade.
What "partial birth abortion" is generally understood to refer to is the D and X procedure, occasionally used by doctors in abortions after the first trimester, in which the fetus’ body is delivered largely intact rather than being dismembered first.
Gruesome? Sure. More gruesome than dismembering the body first and then counting body parts to make sure you haven’t missed anything? That shouldn’t be the standard. No one likes abortions, much less late ones. They are prohibited after viability in every state, unless necessary to save the life of the mother.
The issue here is not when a woman should be allowed to have an abortion, but whether her doctor should be free to use whatever procedure is safest for her in cases where she does have a right to choose. Legislative distaste should not be a reason to subject women to unnecessary risk in the exercise of their constitutional rights.
After the Nebraska ban was struck down, Congress responded by passing the federal law just upheld by the Court. But instead of following Justice O’Connor’s roadmap to constitutionality, the lawmakers decided to flaunt it.
Rather than providing an exception for the health of the mother, they included a finding that according to them, and contrary to the American College conclusions, the procedure they called partial-birth abortion was never medically necessary. The only exception included in the law was if the mother would die otherwise; lesser risks, such as increased risk to later fertility, or greater risk of blood loss, the kind of factors doctors consider, could not be taken into account.
Six federal courts that considered the ban in cases brought across the country to challenge it concluded that the Nebraska decision clearly applied, that the two laws were virtually identical and that the failure to include any exception for the health of the mother, among other factors, doomed the law.
O’Connor is gone. Roberts and Alito have arrived. By a 5-4 vote, the new Court accepted Congress’ finding and upheld the ban.
In the opinion for the majority, Justice Anthony Kennedy, who used to be counted as a conservative and now has become the swing man, concluded that those challenging the law "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases."
And what about those cases where it would be unconstitutional, because denying a woman access to the safest procedure might well be a "substantial burden" on her right to choose, even by Kennedy’s reading? She could go to court and get a court order, if she could convince a judge of that, according to the new Court majority.
The practical impact of this decision may well be limited. Even though it applies nationally, 90 percent of the abortions in this country take place during the first trimester, when a different procedure is always used. Hopefully, doctors will be able to find a safe method for helping the far fewer, but often most heartbreaking, cases where abortion is necessary in the second trimester: cases where the fetus has a serious and uncorrectable birth defect, cases where the mother herself is diagnosed with an illness that makes it impossible for her to continue a pregnancy, as well as cases of young girls who don’t even know they are pregnant until the first trimester is over.
But there is still no excuse for forcing doctors or their patients to choose between a legal risk and a medical one, or for sending women who are facing one of the most painful decisions in life to win over a stranger wearing robes in order to exercise their right to privacy over their own bodies. Talk about a contradiction in terms.
Even if the practical impact of this decision is limited, it stands as a warning sign of the direction the Court is headed on Roe v. Wade.
"Today’s decision is alarming," Justice Ruth Bader Ginsburg, now the Court’s only woman, wrote for the four dissenters, because the majority "refuses to take ... seriously" its own precedent on abortion, and "tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists." If this Court is willing to do this, will there ever be a restriction on abortion that they don’t like? I think I can answer that.
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Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.
Estrich's books include the just published “Soulless,” “The Case for Hillary Clinton,” “How to Get Into Law School,” “Sex & Power,” “Real Rape,” “Getting Away with Murder: How Politics Is Destroying the Criminal Justice System” and "Making the Case for Yourself: A Diet Book for Smart Women.”
She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the “Blue Streak” column for FOXNews.com.