A Large Fraction?
Writing for the majority, Justice Anthony M. Kennedy said opponents of the ban “have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases.” (-link
I’m still mulling this over. I won’t jump out there and say I’m smarter than the Supreme Court, that the decision was wrong. But it does disturb me. Here’s why.
First – what the heck does that mean, “a large fraction of relevant cases?” Is Kennedy saying that laws which are unconstitutional are ok, so long as they are only unconstitutional in a “small fraction of relevant cases”? What does that mean for those cases? Should the doctors consult a lawyer, and if advised that the case under discussion is one of those “small fraction”, then go ahead with the procedure, then file an appeal if convicted under the law? Should he put the patient into suspended animation so that he can get a ruling on his particular case before it is too late? Or, does constitutional law just not matter in those cases within that “small fraction”?
Next – the question of constitutional law on this is whether the legislation passes the “health exception” test of Roe v. Wade. Despite lacking any health exceptions, even at the level of death or debilitation, the court found that the law passed. I’m assuming that the reason a health exception wasn’t necessary for this law was that the government convinced the court that there existed other safe options (at least in “a large fraction” of cases). But, I’m not sure. The only other option I can think of is that the court just overturned the health exemption portion of the Roe v. Wade decision, and stare decisis be damned.
If it is the former, then the court – rightly or wrongly – just declared itself and a group of politicians more capable of deciding what options are safe enough medically in cases like, for instance, severe fetal hydroencephaly than the medical community. If it is the former, then they have also overturned the health exemption portion of Roe v. Wade as it applies to anything less than a “large fraction” of cases.
If it is the latter, and they have overturned the health exception outright, then that is even more discomfiting. Even among the majority of those who are pro-life/anti-choice*, there is respect for the importance of a woman’s health and life. And even if there wasn’t there should be. To overturn just this portion of Roe seems rather perverse.
I think that, as a result of this ruling, it may be important to enshrine in the Constitution a woman’s right to medical treatment to preserve health and life, via an amendment process. Actually, I think that a person’s right to medical treatment to preserve health and life should be so enshrined, just in case there comes a time when Congress feels moved by purely ideological reasons to ban medical procedures that men need as well (fat chance, I know). Obviously, many of us believe those rights are already implicit in the Constitution – but apparently there is a need to make them explicit.
Short of a constitutional amendment – well, really, in any case, we also need to work on electing politicians who care about women’s health and life. Politicians who would not dream of passing a ban such as this one into law without adequate protections for women’s health and life.
Perhaps there are congresscritters even now who could be persuaded to introduce legislation to amend the so-called “partial birth abortion” ban to include the necessary exceptions. Have you written or called yours? I haven’t – but I will tomorrow.
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*Here, I mean everyday people – not the politicians, preachers, demagogues & boondogglers who lobbied for this bill, sponsored it, or voted for it to begin with. To many of those people, women’s health and life comes in second to their desire for political power. However, the average person in the pews – not in the pulpit – who opposes abortion does care about women’s health.
Go ahead & send off a letter to Harry Reid, who voted for the bill. Seems as though the senate majority leader cares more about power than if women die.
Or, better yet, take a few breaths and consider the wording you put down. There are a lot of folks who voted for the ban who may actually think kindly about their wives & daughters and who just maybe – maybe, mind you – aren’t demonic ogres that you’ve presented. I seem to recall J.C. Watts voting for the measure because he was pro-life and he was so power hungry that he…….resigned from congress & went to the private sector so as to make the big bucks. Is he one of the ‘good ones’ who cares about women (like only pro-choice Democrats do)?
RW – you don’t have to be pro-choice to at least insist on a minimal provision for the health/life of a woman in a bill that bans an abortion procedure. You just have to have a conscience.
So, does Harry Reid have a conscience or does Harry Reid not have a conscience? If yea, why just him? If nay, when can we look forward to a Trent-Lott-moment within the DNC since he chose power over women?
BTW, I’m not sure that the life of the woman isn’t included, so all this is probably moot. I think the ever-present “health” question is missing, since a woman could say “my boyfriend left me, this will cause me mental anguish” and VOILA she qualifies.
Also, I have no problem with the good folks in TN & GA handling this issue. Just as I felt with the FMA, even though I’m against gay marriage (but for civil unions), constitutional amendments should be approached with great care and under the most egregious of circumstances. I don’t need Ted Kennedy or John McCain deciding on the abortion laws for my daughter. Let the states handle it.
Harry Reid? If he does have a conscience, he wasn’t using it when he voted for this bill.
Of course he has a conscience. We all do. We all do things that violate our conscience, too. Sometimes deliberately, sometimes just because we don’t stop to pay attention to it long enough to hear what it says. In both cases, it is normally a result of having some other interest (in this case political power) that we are too focused on.
It is this for which I criticize the demagogues, the politicans, the preachers, and the boondogglers. And, yes, Harry Reid falls into that group in this instance.
Constitutional Amendment? Maybe I’m overreacting. I also don’t like trivial amendments to the Constitution. But when the Supreme Court rules that my wife, sister, daughter, mother can be prevented by state or federal law from getting critical treatment that she needs to avoid (for instance) permanent disability, even when it’s only if her case doesn’t fall in the “large enough fraction” of cases – then I say that the “big intrusive government” has absolutely gone too far, and needs to be reigned in by the Constitution. When my head is a little cooler, I may take a less paranoid view of the government, and decide that it’s ok for them to have that power.
You’re right – there is an exception for the life only of the woman. I don’t think I was clear on that when I posted. That helps. However, I don’t think the state has a right to decide that my female relatives should have to spend the rest of their life disabled for their political agenda, either.
Ok… I understand that concern. Although, let’s face it – if it is an issue like that, chances are the woman will have aborted in the first trimester, and nothing that is covered under this particular law would have applied anyway.
Frankly, the comparative risk between letting a woman “get by with something” the way you suggest and letting her be physically harmed balances toward protecting her from physical harm to my eye. I think the standard “health of the woman” should apply. I even think that should include mental health, because there is such a thing as illness that is mental in nature, and there is no reason we should be prejudiced against that sort. I do understand that such illnesses are more difficult to diagnose accurately and to predict, so I recognize the concern that this standard may be difficult for someone to wish to protect when it means someone may get away with something…
But, even if you would rather let a woman be subjected to some non-permanent physical harm than give one a chance at “getting away with something”, you can still provide a minimal exception for her health that covers long-term disability.
Whether you do it through legislation or constitutional amendment, and whether you do it liberally or conservatively, it seems like it is our obligation to provide some protection for people who stand to be harmed – medically, and possibly severely – by our state and/or federal laws.
I’m guessing that were there to be some sort of physical harm to befall the mother should the pregnancy go awry & since it’s late term (by definition), a C-section could be an appropriate route, given modern technology. Caveat: I’m assuming that the mother wants the kid and that the above doesn’t cover every instance.
Otherwise, yeah, I’m with you. But, there are darn few reasons why a perfectly healthy fetus in the 8th month couldn’t be taken (it’s viable) & put in an incubator in order to save the woman’s health. I didn’t say “no” I said few. I have a young cousin who was taken late in the 7th month and while there were some iffy moments for a few weeks, she’s fine. Their scenario fits the “mother’s health” to a tee. Actually, were she to have gone even a few more days, they both would’ve died. So, they took the baby & everyone is healthy & happy. I realize that, as noted earlier, not every case is akin to that, of course. But, then again, I’m willing to admit that not every case could end in that scenario. Will the pro-choice side admit the reciprocal?
Why just state “health” and assume that thus we need to have the status-quo where there are no safeguards for the burgeoning baby? It’s the last trimester, so the health of the fetus matters, too. This isn’t someone who is 2 weeks pregnant, after all. I’m no zealot on the matter, but let’s not treat this as if it’s the morning after conception, either.
In the early stages the woman’s rights outweigh the fetus but in the last few weeks of a pregnancy, an abortion shouldn’t be a ‘choice’, but rather the only solution. Now, what’s so wrong with that last sentence? Why couldn’t the two sides agree on that?
Ok…
First, I can’t speak for the “pro-choice” community as far as admitting the reciprocal view that some cases can be solved without abortion, and with reduced risk to the woman’s health, but I will speak for myself in saying that yes – I agree.
Personally, while I can state (risk-free, of course) that if it were me, I would choose the reduced risk scenario of a C-section over the abortion of a late-term fetus, I still think that when that decision has to be made it should be the woman’s right to make it for herself. I don’t think she should be “forced” (notice the scare quotes) to opt for a somewhat risky medical procedure. While the standard “health” provision is amenable to my view, and perhaps not to yours (assuming you believe she should only have the avenue of C-section open to her), I think you are telling me that you agree that at least a minimal provision for the critical health needs of the woman is necessary. If so, I appreciate that, and I respectfully disagree that the protection of the fetus outweighs the right of the woman to decide for herself on whether to go under the surgeon’s knife.
My reasoning for that is complex, and probably best dealt with at another time.
Consider this: The classic case where the law we are discussing would be applied… The fetus is brain-dead from hydroencephaly. The option are D&E or C-Section. Both result in the fetus dead, having felt no pain. One involves the woman having unwanted (and unneeded) surgery. The other does not. The abortion was not the only solution in this circumstance. But, it was the better one, and the one more respectful of the woman’s rights. It is not an option for that woman any longer because of this law. That’s what is wrong with insisting that abortion in the last few weeks be the “only” option available. That’s one reason why there remains disagreement between the two sides on that point.
Which is abortion on demand, at any point….no questions asked, is it not?
In the case under discussion, if a woman wanted an elective abortion (not medically needed) in the last trimester, under the current law but with a health exception (or at least a minimal health exception), she would not be able to obtain it via a d&e (not that she would want to). She would *probably* still be able to obtain some kind of abortion, since that isn’t what was outlawed in this bill, but the exception doesn’t make it “abortion on demand”.
“Abortion on demand” is a phrase that can mean different things to different people. As are some of the rhethorical flourishes that feminists characterize those who want to restrict abortion. Whether you can apply the label to you own satisfaction or not, it isn’t the label that matters. It’s the people who matter, and how they are affected by the final policy.
I mean it as “a woman opting to have an abortion at any time with no questions asked”, per the wording. Meaning “no restrictions on abortion, period”.
Also: why would a woman diagnosed with mental illness be given the benefit of the doubt were she to decide to have a late term abortion?
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BTW, I was going into this discussion ASSuming that the baby/fetus was 100% healthy. Any changes to the scenario (brain dead baby) of course would change things, but I’m going at this under the guise that the baby/fetus is fine. IOW, I’m arguing from the “no partial birth abortions, period, unless it is the only option” point of view, since that’s the one I have. I’m not a catholic who thinks that any abortion is a sin or a crime, but I most certainly think that aborting a healthy fetus in the last weeks of pregnancy on an elective basis is as close to infanticide as one can get (per Moynihan’s poignant description) and thus I cannot assume that there should be NO sanctions against this practice.
Well, of course the procedure banned by this law is often used (controversy over what percentage of times) in cases of severe fetal hydroencephaly, where there is little chance that the fetus will survive, where it is already dead, or where it is brain-dead. Other reasons for this type abortion exist, some of which include elective reasons, or non-elective reasons with healthy fetuses.
Honestly, I’d rather see very late term abortions using *any* procedure banned as an elective procdure than to see one procedure banned without respect to medical need.
The Supreme Court just ruled that a baby who has survived for 7 to 9 months in the most dangerous place in the US, the mother’s uterus, now has the right to life. Maybe the following had some effect on the decision. No documented late term abortions could be found to have been performed to save the life of the mother. Thankfully, (hopefully) there will be no more infants who suffer the agony of being put to death without even having anesthetic administered prior to the instrument of death. Considering the fact that NO case has been documented of a mother’s death and countless infants have been put to death, I see this as a time of rejoicing for our nation. Most Americans, once they learn the facts about abortion, agree that the unborn should be included in the “right to life” that you mentioned. I don’t know how we ever reached a point in our country where we decided that it is “okay” to put an innocent person to death to save ourselves anyway, but in the case of late term abortion, that is just not the case. In a tiny percent of early abortion, that may be a consideration, but most are simply unwanted pregnancies.
My only response to the last comment is to encourage you to be certain that your notions of the “truth about abortion” derive from careful research and critical thinking.
(as should all of us)