Sometimes the law and the courts lead the country culturally and sometimes they follow. In the case of abortion and the Roe v. Wade decision, the Supreme Court has been mired in a decision that was so wrongly decided that it now has difficulty in reaching a position consistent with the national intuition about abortion.
According to a recent Washington Post poll, 16% of Americans believe abortion should be legal in all cases, 39% believe it should be legal in most cases, 31% believe is should be illegal in most cases, 12% believe it should be illegal in all cases, and 2% remain unsure. Thus 70% of Americans believe some regulation of abortion is appropriate. There has been a slight shift against abortion over the last decade, but these percentages given in the poll have remained remarkably stable. In 1996, 24% believed that abortion should be legal in all cases. If Roe v. Wade had been decided differently, states would have managed to reach some reasonable compromises with respect to abortion without the political rancor that now accompanies the issue. Moreover, these state-by-state decisions would enjoy the legitimacy associated democratic decisions.
These notions are consistent with the general view, that early in pregnancy the fetus has not really achieved the status of person and hence most Americans grant total discretion to the pregnant woman with regard to abortion. However, as the fetus grows, so does its identification as a person. This is why a majority of the country and a majority Congress agreed to ban partial-birth abortion (intact D&E). In this procedure, the fetus is delivered entirely except its head. The head is then destroyed and then remainder of the fetus is removed from the mother. There is some controversy as to medical necessity of the procedure, but one has to suspend common sense to not believe that the chief reason for destroying the fetuss head is to insure that it is not born alive. Once a fetus escapes the mother alive, there would be an obligation to treat the baby as person and to render medical assistance. Partial birth abortion treads too close to infanticide and was hence it was banned.
In Gonzalez v. Carhart, the Supreme Court ruled 5-4 that the ban of partial birth abortion was legal. However, the decision was so narrowly drawn and the margin on the Court so small, there is virtually no chance that the Court as currently constructed will measurably erode abortion rights. It is not even clear that the partial birth abortion ban will save even a single fetus from destruction. Nonetheless, reading the opinions of the Court, particularly the dissenting opinion by Justice Ruth Bader Ginsberg is illuminating.
Roe v. Wade used the right of privacy implied by the Fourth Amendment to find a right to abortion in the Constitution, but it was never really about privacy. The government and the courts have no problem regulating other procedures like breast enhancement surgery that certainly touch on the issue of privacy. As Ginsberg honestly concedes, “…legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” Abortion rights have little to do with Constitutional imperatives, but with a notion about how a society should be run. Despite Ginsberg’s preference, this is the job of elected representatives, not judges no matter how wise or enlightened they believe themselves to be.
Ginsberg explains how abortion rights jurisprudence is tied to the concept of viability, the point at which the fetus will survive outside the womb. This is a convenient, but not principled demarcation. The age of viability continues to decrease. Recently, Amillia Taylor survived with less than 23 weeks of gestation, weighing less than a pound at birth. The American Association of Pediatrics has declared such babies as non-viable, but this little Amillia did not much care what the august American Association of Pediatrics avers.
One can anticipate that at some point in the future, it will be possible keep babies alive born earlier in the second trimester. It is seems that a more reasonable demarcation would be something inherent in the nature of the fetus (or baby), for example the maturity of its mental and brain structures. Again, these would be best debated in legislatures, where it is easier to change laws as additional scientific information becomes available.
It is hard to believe that the Gonzalez v Carhart decision would be considered a victory by either side of the abortion debate. Doctors may no longer be able to perform an intact D&E, but they can dissemble the fetus within the womb and then extract it. As Ginsberg concedes, “The law saves not a single fetus from destruction.” Is this what the pro-life movement considers a victory? Certainly, the pro-choice Americans will not perceive a benefit from the attention to paid to the public description of the gruesome procedures used to terminate late-term abortions.
Perhaps the only good to come of the Carhart decision is that it provided one more hilarious illustration of the mendacity of Senate Majority leader Harry Reid. President Bush appointed Justice Samuel Alito to the Supreme Court, replacing Justice Sandra Day O’Conner. She would have likely flipped the 5-4 decision in the Carhart Case. Compelled to criticize Bush, Reid reflexively complained immediately after the Carhart decision was released. He grumbled that “[a] lot of us wish that Alito weren’t there and O’Connor were there.” However, Reid voted for the partial abortion bill and he was thus complaining that the Supreme Court had upheld a bill that he voted for. Is Reid conceding that he voted for a bill he considers unconstitutional? One could not make up a better tale of hypocrisy.
This entry was posted on Sunday, April 29th, 2007 at 7:35 am and is filed under Law, Social Commentary. You can follow any responses to this entry through the RSS 2.0 feed.
You can leave a response, or trackback from your own site.
Carhart Abortion Decision
Sometimes the law and the courts lead the country culturally and sometimes they follow. In the case of abortion and the Roe v. Wade decision, the Supreme Court has been mired in a decision that was so wrongly decided that it now has difficulty in reaching a position consistent with the national intuition about abortion.
According to a recent Washington Post poll, 16% of Americans believe abortion should be legal in all cases, 39% believe it should be legal in most cases, 31% believe is should be illegal in most cases, 12% believe it should be illegal in all cases, and 2% remain unsure. Thus 70% of Americans believe some regulation of abortion is appropriate. There has been a slight shift against abortion over the last decade, but these percentages given in the poll have remained remarkably stable. In 1996, 24% believed that abortion should be legal in all cases. If Roe v. Wade had been decided differently, states would have managed to reach some reasonable compromises with respect to abortion without the political rancor that now accompanies the issue. Moreover, these state-by-state decisions would enjoy the legitimacy associated democratic decisions.
These notions are consistent with the general view, that early in pregnancy the fetus has not really achieved the status of person and hence most Americans grant total discretion to the pregnant woman with regard to abortion. However, as the fetus grows, so does its identification as a person. This is why a majority of the country and a majority Congress agreed to ban partial-birth abortion (intact D&E). In this procedure, the fetus is delivered entirely except its head. The head is then destroyed and then remainder of the fetus is removed from the mother. There is some controversy as to medical necessity of the procedure, but one has to suspend common sense to not believe that the chief reason for destroying the fetuss head is to insure that it is not born alive. Once a fetus escapes the mother alive, there would be an obligation to treat the baby as person and to render medical assistance. Partial birth abortion treads too close to infanticide and was hence it was banned.
In Gonzalez v. Carhart, the Supreme Court ruled 5-4 that the ban of partial birth abortion was legal. However, the decision was so narrowly drawn and the margin on the Court so small, there is virtually no chance that the Court as currently constructed will measurably erode abortion rights. It is not even clear that the partial birth abortion ban will save even a single fetus from destruction. Nonetheless, reading the opinions of the Court, particularly the dissenting opinion by Justice Ruth Bader Ginsberg is illuminating.
Roe v. Wade used the right of privacy implied by the Fourth Amendment to find a right to abortion in the Constitution, but it was never really about privacy. The government and the courts have no problem regulating other procedures like breast enhancement surgery that certainly touch on the issue of privacy. As Ginsberg honestly concedes, “…legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” Abortion rights have little to do with Constitutional imperatives, but with a notion about how a society should be run. Despite Ginsberg’s preference, this is the job of elected representatives, not judges no matter how wise or enlightened they believe themselves to be.
Ginsberg explains how abortion rights jurisprudence is tied to the concept of viability, the point at which the fetus will survive outside the womb. This is a convenient, but not principled demarcation. The age of viability continues to decrease. Recently, Amillia Taylor survived with less than 23 weeks of gestation, weighing less than a pound at birth. The American Association of Pediatrics has declared such babies as non-viable, but this little Amillia did not much care what the august American Association of Pediatrics avers.
One can anticipate that at some point in the future, it will be possible keep babies alive born earlier in the second trimester. It is seems that a more reasonable demarcation would be something inherent in the nature of the fetus (or baby), for example the maturity of its mental and brain structures. Again, these would be best debated in legislatures, where it is easier to change laws as additional scientific information becomes available.
It is hard to believe that the Gonzalez v Carhart decision would be considered a victory by either side of the abortion debate. Doctors may no longer be able to perform an intact D&E, but they can dissemble the fetus within the womb and then extract it. As Ginsberg concedes, “The law saves not a single fetus from destruction.” Is this what the pro-life movement considers a victory? Certainly, the pro-choice Americans will not perceive a benefit from the attention to paid to the public description of the gruesome procedures used to terminate late-term abortions.
Perhaps the only good to come of the Carhart decision is that it provided one more hilarious illustration of the mendacity of Senate Majority leader Harry Reid. President Bush appointed Justice Samuel Alito to the Supreme Court, replacing Justice Sandra Day O’Conner. She would have likely flipped the 5-4 decision in the Carhart Case. Compelled to criticize Bush, Reid reflexively complained immediately after the Carhart decision was released. He grumbled that “[a] lot of us wish that Alito weren’t there and O’Connor were there.” However, Reid voted for the partial abortion bill and he was thus complaining that the Supreme Court had upheld a bill that he voted for. Is Reid conceding that he voted for a bill he considers unconstitutional? One could not make up a better tale of hypocrisy.
This entry was posted on Sunday, April 29th, 2007 at 7:35 am and is filed under Law, Social Commentary. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.