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.