Tackling "partial birth" abortion

When it comes to late-term abortions, Congress doesn't care about maternal health. Will the Supreme Court?

Published November 7, 2006 12:49AM (EST)

With the midterm elections only a day away, we're all pretty focused on the government's legislative branch. On Wednesday, though, we're likely to feel more judicially minded, since the Supreme Court will be assessing the constitutionality of the federal Partial Birth Abortion Ban Act.

As we've mentioned before, the Justice Department ostensibly wants to resolve the conflicting rulings previously made by lower courts and get the ban a final yea or nay. It's no accident, though, that the composition of the court has changed since 2000, when it found Nebraska's "partial-birth abortion" ban unconstitutional because of its lack of an exception for the mother's health. Realistically speaking, the court is more likely to give the federal ban a "yea" this time. As the New York Times noted on Sunday, "Justice Sandra Day O'Connor, who retired in January, voted with the 5-to-4 majority" in 2000. No one really knows how O'Connor's replacement, Justice Samuel Alito, will vote on this or other abortion cases, but he does have a record of supporting restrictions on abortion access. If Alito votes to uphold the ban, and the other justices vote the way they did last time, it'll be up to the court's other new member, Chief Justice John Roberts, to break the tie. No one really knows how Roberts will vote, either -- a Los Angeles Times Op-Ed notes that Roberts told the Senate Judiciary Committee that "it is a jolt to the legal system when you overrule a precedent" -- but we can't discount President Bush's promise to nominate socially conservative justices in the Antonin Scalia/Clarence Thomas mold.

With those factors in mind, the New York Times identifies Justice Anthony Kennedy as the case's key vote, because he's "the only one of the four [Nebraska case] dissenters who accepts the court's precedents on the basic right to abortion." Not that he seems likely to vote against the federal ban: In his dissenting opinion in the Nebraska case, he called the abortion method in question "a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life."

And unquestionably, many people do consider this type of abortion procedure grave and criminal. The LAT describes the procedure as "partially extracting a fetus from the uterus into the birth canal, where [the physician] then collapses the skull by suctioning its contents," noting that the prospect is "distasteful even to many supporters of abortion rights." But the usual alternative to intact dilation and extraction, or so-called partial-birth abortion, is "disarticulated" dilation and extraction, in which the fetus is taken apart before it's removed from the uterus. So, really, neither procedure sounds like a walk in the park. Physicians say prohibiting intact extraction can endanger the mother's health, because, as the New York Times reports, of "the repeated insertion of surgical tools  and by sharp bone fragments that can injure the patient internally." They also say the federal ban makes a false distinction between intact and disarticulated extraction procedures, that the two operations are actually "part and parcel of the same procedure." The plaintiffs claim the law criminalizes "an array of safe abortion procedures as early as 13 weeks in pregnancy."

These factors are critical to the issue currently on the table: The federal Partial Birth Abortion Ban Act doesn't include an exception for the health of the mother because Congress decided no such exception was necessary. Many physicians disagree, and, because of the high court's Nebraska ruling, lower courts have deemed the federal ban unconstitutional for this reason. Now, the Times reports, "the administration argues that the federal law and the Nebraska ruling can coexist if the court recognizes an obligation to defer to Congress's judgment that a health exception is unnecessary."

Congress' assertion seems medically unfounded and outrageous -- but we'd better hope that five justices think so, too, or the right-wing campaign to restrict abortion may get another boost this week.

By Page Rockwell

Page Rockwell is Salon's editorial project manager.

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