Today the Supreme Court ruled in a 5-to-4 decision that a nationwide ban on so-called "partial birth" abortions was legal. Significantly, this is the first time the Court has intervened to this extent on the medical procedures used in abortion--as opposed to issues of public funding and parental notification, which had littered its docket in the past. The decision has been a major blow to abortion rights activists, who, although they are not surprised by the decision given the conservative majority on the bench today, remain dismayed by the implications.
"This is an invitation for states to pass further restrictions on abortion," National Abortion Federation president and CEO Vicki Saporta told The Nation. "Most troubling, it undermines the core principles of Roe v. Wade by not putting women's health first."
The Supreme Court decision upholds the Partial Birth Abortion Ban Act that Congress passed in 2003 and makes it criminal for physicians to perform abortions using "dilation and extraction," a procedure that is used for late-term abortions. The law makes exceptions for the life, but not the health, of the mother. "If there are any medical uncertainties, this law gives the benefit of the doubt to politicians, not physicians," says Saporta. "And that's plainly and simply not good for women's health."
The Court struck down a similar state ban on "partial birth" abortions in 2000--but with a different Court makeup. In today's case, three appellate courts had ruled that the law was unconstitutional before it came to the Supreme Court, with the US District Court of Northern California insisting that the law made criminals of physicians "during virtually all abortions performed after the first trimester."
In fact, 85 percent to 90 percent of the roughly 1.3 million abortions performed each year in the United States occur in the first trimester. But the remaining 10 percent have been increasingly difficult for women to procure, as fewer physicians are trained in the late-term procedures and fewer hospitals and clinics are willing to provide them. This new ban is expected to hit older women and teens hardest: older women because they don't get amniocentesis results until later in their pregnancies, and teens because they are notoriously reluctant to tell their parents they're pregnant until it is nearly obvious.
As predicted, the President's appointment of Chief Justice John Roberts has helped advance the "prolife" agenda despite the fancy footwork Roberts displayed during confirmation hearings in September 2005, when he assured senators that he respected Court precedent, was "not an ideologue" and--to the dismay of some conservatives--indicated that he "respected the right to privacy" (key words in the abortion battle).
Conservatives need not have worried their purty little heads: This decision, in which newcomers Roberts and Justice Samuel Alito joined the majority, ignores thirty years of precedent, marches lockstep with a prolife plan to chip away at women's reproductive rights and throws privacy rights out the window.
A decade ago, when prolifers were making their first forays into this territory--naming the procedure "partial birth" abortion and introducing the idea in a few conservative states--they argued that those pregnant, promiscuous teens who couldn't fit into prom dresses would simply slip out and get this type of late-term abortion. In graphic detail, prolife activists explained how a fetus has its skull crushed to fit through the birth canal in this particular procedure and provided gory photos to hammer home their point.
Today, they've refined their methods a bit and tend, when arguing, to remind opponents that there are still alternative methods for late-term abortions. That's when they invoke language like "dismembering the baby piece by piece within the mother's womb"--a worrisome description that seems to be laying the groundwork for their next area of attack.
All of this is going exactly according to the Prolife Master Plan: Standing no chance of an outright ban on abortion, prolifers aim to strip women's reproductive rights one "ban" at a time. Americans United for Life, one of the oldest prolife groups in the country, puts it quite clearly in its mission statement: "If we are to prevail in our secular culture, we must reach out to address the practical concerns of ambivalent Americans. We must address our culture as it is and not as we would like it to be. With a steady eye toward the mark and the support of people of and for life, we are confident that a renewed culture of life is within our reach."
Today, the organization is doubtless preparing to anoint as saints Chief Justice Roberts and Justice Alito.
Karen Houppert, an Air Force brat and a New York journalist, is the author of 'The Curse: Confronting the Last Taboo, Menstruation' (Farrar, Straus & Giroux) and, most recently, 'Home Fires Burning: Married to the Military--for Better or Worse' (Ballantine Books), about military wives whose husbands have been deployed.
© 2007 The Nation