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The Slippery Slope and the Erosion of our Rights
Posted 4/20/2007 9:09 AM
Back to the future
Come with me now to the days of yesteryear, when abortions were done in back alleys (if you were poor) or in Tokyo (if you were rich) or maybe (if you were lucky, knew who to ask and didn’t mind being blindfolded) by decent doctors under semi-sanitary conditions late at night in the back room of an otherwise legal obstetrics practice. Or all alone in your room with a coat hanger or toxic chemical. I was there and I know what people went through.
Yes, our friends on the Supreme Court have gone and done it now. By a 5-4 margin, they’ve started us down that famous slippery slope you’ve been hearing so much about. Although the recent decision was to uphold the Federal ban on late term abortions performed by the "intact dilation and extraction" method (the alternative is to chop them up inside the womb, something that apparently passes constitutional muster for the time being), it is the first step that would end with the overturning of Roe v. Wade.
As a lawyer, I want to carefully analyze the opinion with legal precision. As a woman I want to extract the brains of the five male justices who turned their backs on history, precedent and decency.
The "ick" factor
This is the first time the Supreme Court upheld a ban on any kind of abortion that does not have an exception for the woman’s health. Never mind that many medical experts say this is often the safest procedure for late term abortions, it’s just too icky for the Supreme Court majority. In his lead opinion, Justice Kennedy says:
"It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."
Then he lays out the true agenda for the right:
"It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions."
Take away a women’s choice, and voila, more babies. Well, here’s a surprise; no one is for more abortions. Not the right or the left. (Fewer babies, yes, but that’s another discussion.) And what they aren’t telling you is the reason women have these procedures in the first place. These are women who want to have the baby. But something goes dreadfully wrong. A profoundly deformed fetus, or the woman’s health, often her life, would be at risk if she continued the pregnancy. Never mind that the alternative may be less safe for the woman and just as deadly for the fetus. (It’s only a matter of time before all abortions are illegal, so hold your consternation over that seeming contradiction for now.)
Disagreement from the fringe
Besides the supposedly "moral issues" cited by Justice Kennedy, he also claims there is disagreement in the medical community such that the Legislature is justified in stepping in to play Daddy Doctor to us all.
In short, even though it may be the safer procedure, the reasoning goes: a) women are just too delicate to hear about it; and b) some doctors disagree and so we can just ignore the whole weight of medical evidence and legal precedent.
Justice Ginsberg said it best in her dissent:
"Today’s decision is alarming. It refuses to take (earlier anti-abortion cases setting precedent that that statutes that don’t provide an exception for the health of the woman are unconstitutional) seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG)." (Read the whole opinion at http://caselaw.lp.findlaw.com/...
And who are the docs who disagree? The ones cited by Justice Kennedy as providing enough dissent to warrant a finding of uncertainty on the part of the medical profession to justify the law? The American Association of Pro Life Obstetricians and Gynecologists is a small "special interest group" within the American College of Obstetricians and Gynecologists. Other than oppose any abortions, they tout now debunked studies showing a greater risk of breast cancer among women who've had an abortion. This is the group of physicians who testified in Congress for the ban in 2003, and who Kennedy cites as offering disagreement sufficient to justify this draconian law.
Meanwhile, in largely Roman Catholic Mexico City, the trend is the other way, with lawmakers poised to legalize abortion there. The irony speaks volumes.