More Coverage of Supreme Court Decision on Federal Abortion Ban

April 19, 2007

Live Discussion: Washington Post Supreme Court reporter Robert Barnes today at noon ET discusses Wednesday’s 5-4 ruling upholding a Congress-passed law banning so-called “partial-birth” abortion. A transcript will be available. Read Barnes’ front-page story on the decision.

Also see this WaPo story on abortion data. The “best estimate,” writes Dan Brown, is from the nonprofit Guttmacher Institute, which found that in the year 2000, “there were 1.31 million abortions performed in the United States each year. Of that total, about 2,200, or 0.17 percent, were by ‘intact dilation and extraction’ …”

Brown continues:

Although many people believe the technique is done only at an advanced gestational age, “most D&X procedures in 2000 were second-trimester, not third-trimester, abortions,” Guttmacher demographer Lawrence B. Finer said in an interview yesterday, referring to the dilation and extraction method.

Overall, 88 percent of abortions are performed before the end of the 12th week of gestation — the first trimester. About 10 percent are done between weeks 13 and 20. About 1 percent are done at week 21 or later. A normal gestation period is 38 weeks, 40 weeks after the last menstrual period. […]

A chief fear of abortion providers is that the ban can now be interpreted to cover many abortions, despite the court’s effort to define it unambiguously.

“There is definitely a concern that this ruling could come down and really affect procedures done as early as 12 weeks,” said Amy Hagstrom Miller, board chairman of the National Coalition of Abortion Providers. “The providers want to know that what we do is okay. We are the kind of people that comply with laws.”

At NPR, this page leads to separate coverage by Nina Totenberg and Slate legal analyst Dahlia Lithwick. Plus, Lithwick has a great piece up at Slate — titled “Father Knows Best: Dr. Kennedy’s magic prescription for indecisive women.” An excerpt:

The key to comprehending the Supreme Court’s ruling today in Gonzales v. Carhart upholding the federal partial-birth abortion ban is a mastery not of constitutional law but of a literary type.

Justice Anthony Kennedy’s majority opinion is less about the scope of abortion regulation than an announcement of an astonishing new test: Hereinafter, on the morally and legally thorny question of abortion, the proposed rule should be weighed against the gauzy sensitivities of that iconic literary creature: the Inconstant Female.

Kennedy invokes The Woman Who Changed Her Mind not once, but twice today. His opinion is a love song to all women who regret their abortions after the fact, and it is in the service of these women that he justifies upholding the ban. Today’s holding is a strange reworking of Taming of the Shrew, with Kennedy playing an all-knowing Baptista to a nation of fickle Biancas.

As a matter of law, the majority opinion today should have focused exclusively on what has changed since the high court’s 2000 decision in Stenberg v. Carhart. Stenberg struck down a Nebraska ban that was almost identical to the federal ban upheld today. That’s why every court to review the ban found the federal law, passed in 2003, unconstitutional. What really changed in the intervening years was the composition of the court: Sandra Day O’Connor, who voted to strike down the ban in 2000, is gone. Samuel Alito, who votes today to uphold it, is here.

What hasn’t changed is that Anthony Kennedy finds partial-birth abortion really disgusting. We saw that in his dissent in Stenberg. That’s what animates and drives his decision. His opinion blossoms from the premise that if all women were as sensitive as he is about the fundamental awfulness of this procedure, they’d all refuse to undergo it. Since they aren’t, he’ll decide for them.

At Salon, Lynn Harris has reaction from reproductive rights advocates and offers a glimpse at the struggle healthcare providers will have complying with the law and still providing the best care. Harris also acknowledges that in some states a ban of sorts in already in place.

“Given that politicians are now playing doctor, we need to figure out our best compliance strategy,” said Gartner, insisting that Planned Parenthood will continue to provide the best and safest possible care even after the law goes into effect (in approximately six weeks).

Still, an e-mail went out today from Planned Parenthood of New York City’s Action Network acknowledging that “this law may affect a small number of the abortions we provide.” While intended as reassuring (“may affect,” “small number”), it served as a reminder that the guys in robes, not lab coats, are stepping in to take charge. […]

Ironically, however, some clinics will not have to spend any time at all figuring out how to comply with the ban. That is because certain state regulations — such as those prohibiting surgical abortions in outpatient clinics — already constitute de facto bans on second-trimester abortions. (Earlier in pregnancy, abortions are normally performed with suction, a procedure that is not currently in question.) “This ruling will not impact any of our clinics,” said Susan Hill, president of the North Carolina-based National Women’s Health Organization, which runs Mississippi’s only abortion clinic and facilities in five other states. “Most providers I’ve talked to said, ‘This isn’t going to bother us.’ The other restrictions have been devastating — the 24-hour waiting period, the ultrasounds. But practically speaking, this doesn’t have much impact on us. It was a political battle.”

Although, say some reproductive rights advocates, it could be the battle that loses the war.

For backstory, read “Gambling With Abortion,” by Cynthia Gorney, published in Harper’s in 2004. It’s a very comprehensive and well-written story that covers the politics leading up to the introduction in Congress, more than a decade ago, of the first Partial-Birth Abortion Ban Act and the subsequent trials that stemmed from its passage in 2003.

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