Wednesday the Supreme Court heard arguments about that old Republican coinage "partial birth abortion," a catchall political term invented by the National Right to Lifers to describe one or more of a set of sometimes overlapping procedures -- including intact dilation and extraction (intact D&X) or intact dilation and evacuation (intact D&E) --- used in a number of rare late-term abortions.
Actually, the justices met to assess the constitutionality of the federal Partial Birth Abortion Ban Act, a law passed by Congress in 2003, but since the term is so laden with right-wing spin, I find it hard to invoke without first pointing out that it is not a medical term, nor even a legal one, but the brainchild of Satan's semioticians.
As we reported earlier this week, the Justice Department wants the Supreme Court to resolve conflicting rulings previously made by lower courts. Back in 2000 the high court ruled against a similar Nebraska ban, but now that retired Sandra Day O'Connor, who voted against the Nebraska ban, has been replaced by Samuel Alito, an unapologetic pro-lifer, the scales may well tip in the other direction.
The medical details are complex -- so much so that as reported by Slate's Supreme Court reporter Dahlia Lithwick, the Justices were hard-pressed to move beyond questions of medical procedure and get to their actual area of expertise: the constitutionality of the law. That the surgeries in question are also sometimes performed in early-term abortions as well as post-miscarriage procedures hasn't helped make the issue any more accessible to the public, the judges or the politicians. What ensues are endless discussions of fetal body parts, extraction methods, syringes filled with fetal doses of anesthetics -- all fodder for the conservative carnage condors.
What irritates me about this debate is how these details distract from the larger issues. We're not talking about a birth, partial or otherwise. We are talking about an abortion -- a procedure our society has deemed the purview of a woman and her doctor. The alternatives to the notorious intact D&X are other abortive procedures, all of which (surprise, surprise) also result in terminating the pregnancy. If our society decided this fetus was endowed with personhood, yes, intact D&X wouldn't be something you wouldn't wish on your worst enemy. But it's a fetus -- unable to live without the mother's consent. It's not a baby.
But like so many battles on the abortion front, this one seems to be as much about the pageantry of the gory details as about the simple reality. Like the hallowed embryos at the center of the embryonic stem cell debate, these fetuses are not going to live.
What's especially outrageous about the federal ban, like most of the failed state bans that came before it, is that it includes no exceptions for the health of the mother. They got around this fact by simply declaring -- despite medical testimony to the contrary -- that there was never a situation in which the health of the mother might require such a procedure. But what can we expect? This legislation was crafted by politicians whose hostility toward science is only trumped by their ignorance. This is the same body whose doctor-senator Bill Frist once said that you might be able to contract HIV from tears and that blind and irrevocably brain-damaged Terri Schiavo could see based on watching a videotape of her face.
Just as Congress has failed to write a law that makes any medical sense, the courts are struggling to grasp the medical facts. Why? Maybe because it's a medical issue.
As Lithwick eloquently observes, "After 120 minutes of exquisitely detailed medical inquiry, the justices have proven beyond a reasonable doubt that they just are not doctors. They have tried valiantly to understand the medical testimony and to analyze the protocols. They struggle to weigh the risks of lethally injecting a fetus in the uterus. But that's just not why they went to law school ... If institutional humility means anything at all, it means that when you can't understand the medicine, you stay out of the operating room."