A Bit on the “Partial-Birth” Abortion Case

The Supreme Court has granted cert on the federal Partial Birth Abortion Ban Act, deciding whether or not it’s constitutional. Lots of bloggers have touched on this issue already, but for the curious, here’s a little legal history and PBA 101.

The New York Times writes,

The law makes it a crime for a doctor to perform an abortion during which a part of the fetus, either the “entire fetal head” or “any part of the fetal trunk past the navel,” is outside the woman’s uterus at the time the fetus is killed.

The first problem with the PBA ban is that Congress is using a term invented by the right-to-life crowd instead of banning an actual medical procedure. “Partial-birth abortion” is defined in the statute as “deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother for the purpose of performing an overt act that theperson knows will kill the partially delivered living fetus.”

That’s fairly vague, and could emcompass a variety of abortion procedures. Congress could have chosen to ban an established medical practice — dilation and intact extraction (D&X), for example, which is the closest thing to the description of “partial-birth” abortion and which actually appears in medical text books. Under the commerce clause, Congress is well within their power to regulate medical procedures. Of course, a very narrow reading of the commerce clause could lend itself to the view that Congress should stay out of intra-state medical procedures, but in general medicine falls pretty squarely within the realm of what Congress can regulate. So Congress could certainly have created a bill that banned D&X specifically, or D&X and D&E (dilation and extraction), or any abortion after 15 weeks (which would have been unconstitutional, but they still could have tried).

But they didn’t. They used a term coined by the anti-choice movement, which isn’t analogous to any single existing procedure, and they banned it. Many claim that it’s a ban on “late-term” abortions, which is innaccurate. “Late-term” also isn’t a medical term, and it’s highly subjective. Many people interpret “late-term” to mean “post-viability” or “third trimester,” but that’s not necessarily the case (and those are two different things). The PBA ban doesn’t outlaw a post-viability procedure; it doesn’t give a time in pregnancy after which this procedure shouldn’t be allowed. It’s so vague that it could ban abortion procedures as early as 12 weeks.

Most congressmen are not doctors. This is why they shouldn’t be regulating legal medical procedures when they don’t actually know what they’re talking about.

The Supreme Court has already heard a “partial-birth” abortion case in Stenberg v. Carhart, dealing with a statute almost identical to this one — which in itself is a cause for concern, and could indicate that they’re willing to overturn precedent. Like the federal law, the Nebraska statute didn’t have an exception for the pregnant woman’s health, and the court found this to be at odds with its holdings in Roe and Casey. Three circuit courts have found this ban to be unconstitutional, and if we’re looking at Supreme Court precedent, there’s no way it can stand. So this one should be a slam dunk, right?

Not exactly. The major difference between the Nebraska case and this one is that in creating the federal law, Congress held a fact-finding session in which it determined that so-called “partial birth” abortion is never necessary to preserve the health of the pregnant woman. A variety of doctors testified to this, apparently under the impression that “partial-birth” abortion is synonymous with dilation and intact extraction (it isn’t). And the truth is, yes, in many cases doctors may be able to perform an alternative procedure to D&X. But the alternative procedure wouldn’t be the best one for that patient; it may have additional complications; and it will likely involve the patient actually giving birth to a dead or non-viable fetus. The PBA ban isn’t about the time in pregnancy when abortion should be illegal in all circumstances — nowhere in the ban does it give a certain number of weeks after which abortion should be outlawed, or argue that any late abortion procedure is tantamount to infanticide. Instead, it focuses on a particular (made-up) procedure as morally reprehensible, and declares it never necessary. Which, if one assumes that partial-birth abortion is synonymous with D&X abortion, is probably true. Some other procedure that does the exact same thing — just a different way, and perhaps not as safely — could be performed. But the PBA ban, vague as it is, could potentially outlaw many other types of abortion where the fetus is brought partially through the vaginal canal. And that general type of abortion, which could encompass procedures as early as 12 weeks, is often necessary to preserve the pregnant woman’s life.

This matters because the Court is traditionally very deferential to Congress. When Congress states something as a fact derived from their fact-finding exercise, the Court is usually hesistant to challenge it. This is precisely what could give them the grounds to overturn Carhart.

And they will overturn Carhart. That case was divded 5-4, with O’Connor as the swing vote in the majority. Kennedy, who voted with the majority in Casey (the 1992 case upholding Roe), switched over in Carhart, really for no good legal reason except that he is disgusted with the descriptions of the procedure. Roberts, as a replacement for Rehnquist, won’t matter, since we can assume that he’ll vote along the same lines and attempt to uphold the ban. But here’s where Alito matters as a replacement to O’Connor. There is little doubt that Alito will vote with Roberts, contrary to O’Connor’s previous vote, and will swing the decision in the other direction. Unless Kennedy has shifted his view in the past couple years, that will be the outcome. The ban will be upheld, and the stage is set to disregard the physical health of women in medical procedures.

It’s over, kids.

Author: has written 5280 posts for this blog.

Jill has been blogging for Feministe since 2005.
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17 Responses

  1. Kelley
    Kelley February 24, 2006 at 9:35 am |

    Can this really be true? This cannot be happening. We’re living the fucking handmaid’s tale! November, 2006 cannot come quickly enough. Let’s get some pro-choice legislators elected and pass legislation protecting women’s reproductive rights!!!

    Of course, with the so-called “New Democrats”, i.e., republican lite, that’s easier said than done.

  2. zuzu
    zuzu February 24, 2006 at 10:24 am | *

    Most congressmen are not doctors. This is why they shouldn’t be regulating legal medical procedures when they don’t actually know what they’re talking about.

    And, Jesus, look at the ones who are doctors — Bill “Video Diagnosis” Frist and Tom “Medicare Fraud” Coburn.

  3. evil_fizz
    evil_fizz February 24, 2006 at 10:37 am |

    For some more details, I recommend Saletan’s Slate article from this morning Never Say Never. I know he tends to be an asshat sometimes, but he’s got a good explanation of the precendent the government is trying to rely on. (Which appears to be flimsy and inane.)

  4. Amber
    Amber February 24, 2006 at 10:42 am |

    Okay, so this is really happening.
    What can we DO?! I know I’m not the only one that feels powerless here.

  5. Lauren
    Lauren February 24, 2006 at 10:49 am |

    See here.

  6. Amber
    Amber February 24, 2006 at 11:47 am |

    Well I guess I meant more along the lines of, I feel powerless to protect my right to an abortion, and I live in a state where it is still legal. What can I do to protect THAT?

    Are we just going to watch this go to the supreme court and watch Roe get overturned? Is there no recourse at all?

  7. Robert
    Robert February 24, 2006 at 12:36 pm |

    Is there no recourse at all?

    There is plenty of recourse.

    Your first, best hope is to convince a majority of your fellow citizens that your views on abortion are the correct ones, that should be written into law.

  8. Welcome to the Nut House
    Welcome to the Nut House February 24, 2006 at 1:01 pm |

    Ignorance

    Sometimes it’s bliss but only if you really don’t know what the hell is going on. In this case, it would be nice to sit with my head in the sand, but I can’t. Between South Dakota’s General Assembly banning all abortion and the Supreme Court’s dec…

  9. zuzu
    zuzu February 24, 2006 at 1:21 pm | *

    Your first, best hope is to convince a majority of your fellow citizens that your views on abortion are the correct ones, that should be written into law.

    They already do, Robert.

    Though I’m sure when you say “your views on abortion” you mean “you think anyone should be able to waltz right into a clinic and get an abortion at any time right up to her due date.”

  10. Robert
    Robert February 24, 2006 at 2:00 pm |

    Well, zuzu, then you should have no trouble at all getting laws passed that protect the level of abortion rights supported by the populace.

  11. zuzu
    zuzu February 24, 2006 at 2:08 pm | *

    Oh, but we’re at the mercy of those activist judges, legislating from the bench.

  12. Robert
    Robert February 24, 2006 at 2:10 pm |

    Oh, but we’re at the mercy of those activist judges, legislating from the bench.

    Good to know you’re becoming an originalist in response to seeing the courts override legitimate democratic preferences. Between that and the profiling, we’ll have you voting for Republicans within a year.

  13. j0
    j0 February 24, 2006 at 3:26 pm |

    The S. court, as I understand it, is unfortunately not going to hear argument on this case until the next term – in October – which means that its unlikely that there would be a decision before the Nov 2006 elections that could motivate the sleepier portions of the electorate to wake up & vote the supporters of this bill out of office.

  14. zuzu
    zuzu February 24, 2006 at 3:48 pm | *

    Good to know you’re becoming an originalist in response to seeing the courts override legitimate democratic preferences. Between that and the profiling, we’ll have you voting for Republicans within a year.

    No, I don’t think I have sufficient ability to ignore cognitive dissonance to do that.

  15. Robert
    Robert February 24, 2006 at 4:18 pm |

    No, I don’t think I have sufficient ability to ignore cognitive dissonance to do that.

    Your abilities in that direction appear to be legendary.

  16. R. Mildred
    R. Mildred February 24, 2006 at 9:22 pm |

    Well, zuzu, then you should have no trouble at all getting laws passed that protect the level of abortion rights supported by the populace.

    Thank Gawd there isn’t a (barely) two party system manned by upper class men, one half of which is fervently misogynist and the other half is slightly less fervently misogynist, but gets voted into power again and again because “nader is teh suxzorRFLOLOLOLZ” and apparently being a party that is only theroetically pro-choice is the same thing as being actually pro-choice.

    Thank Gawd for the utopian, hyper-representative democratic process of this Great Nation of ours, and the total lack of vote rigging, judicial abuse and social inequality in said system.

    Woo! Wave your flags and cross your legs ladies, almost 6 months until the dems’ total unwillingness to fight for even fair elections, let alone “single issues” policies, bites us in the uterus. Only 13%

  17. R. Mildred
    R. Mildred February 24, 2006 at 9:24 pm |

    Damn, forgot to properly close a tag, that should have read: “Only 13% more to go before choice is made totally inaccessable nationwide via sneaky lawyering and stealth legislature, USA! USA!”

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