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The right of women to choose abortion suffered a serious blow last week when the U.S. Supreme Court upheld a 2003 federal ban on the late-term abortion procedure wrongly called "partial-birth" abortion by the right wing.
In a narrow 5-4 ruling in Gonzales v. Carhart, a majority of the justices upheld the law as constitutional–in contrast to three previous federal appeals court rulings against the federal ban because, among other things, it failed to provide an exception for the health of the woman.
This is the first time since the 1973 Roe v. Wade decision legalizing abortion that the Supreme Court has approved a ban on a specific abortion procedure–in this case, the late-term procedure known as "intact dilation and extraction."
Intact D&E is the procedure used most frequently in cases where there are severe fetal abnormalities, or the life or health of the woman is in danger. Under the federal ban, doctors found guilty of performing the procedure could face two years in prison.
The Court’s ruling flies in the face of medical opinion by claiming that intact D&Es are never medically necessary–something the American College of Obstetricians and Gynecologists (ACOG), which represents approximately 90 percent of OB/GYNs across the U.S., strongly disputes.
Women will now be forced to seek alternative medical procedures that may come with a higher risk of infection, bleeding or other complications. And according to ACOG, the ruling "will chill doctors from providing a wide range of procedures used to perform induced abortions or to treat cases of miscarriage and will gravely endanger the health of women in this country."
"Today’s decision to uphold the Partial-Birth Abortion Ban Act of 2003 is shameful and incomprehensible to those of us who have dedicated our lives to caring for women," said ACOG President Dr. Douglas Laube. "It leaves no doubt that women’s health in America is perceived as being of little consequence."
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WHILE INTACT D&E is used in only 0.17 percent of all abortions performed, according to the Alan Guttmacher Institute, the Supreme Court’s decision purposely opens the door to much wider future attacks on the right to choose at any point in a woman’s pregnancy.
Justice Anthony M. Kennedy–joined by Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Antonin Scalia–wrote in the majority decision that the "government has a legitimate and substantial interest in preserving and promoting fetal life" and "an interest in promoting respect for human life at all stages in the pregnancy."
The opinion also asserts that "a fetus is a living organism within the womb, whether or not it is viable outside the womb." That could open the door to what many suspect will be future restrictions on first- and second-trimester abortions.
As Justice Ruth Bader Ginsburg replied in a scathing dissenting opinion joined by Justices John Paul Stevens, David Souter and Stephen Breyer, the majority decision "cannot be understood as anything other than an effort to chip away at a right declared again and again by this court."
In addition, the new ruling undermines Roe v. Wade by abandoning 30 years of Supreme Court precedent requiring any law restricting abortion to include an exception for the physical and mental health of the woman. A nearly identical law to the federal ban the justices upheld was struck down seven years ago because it contained no health exception.
Women and men alike should also be outraged by the justices’ condescension toward women and their ability to make decisions for themselves.
The majority opinion peddles the idea that "some women come to regret their choice to abort the infant life they once created and sustained" (note the word "infant," as opposed to "fetus").
Further, "some women" will not understand the procedure in advance, and will experience "severe depression" and "loss of self-esteem" following a late-term abortion, Kennedy writes–and concludes, therefore, that the best protection for them is to remove access to the procedure altogether.
As Ginsburg commented in her dissenting opinion, "This way of thinking reflects ancient notions about women’s place in the family and under the Constitution–ideas that have long since been discredited."
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NOT SURPRISINGLY, the right wing is ecstatic about the decision–seeing it as a huge step forward in the drive to do away with abortion rights altogether.
"We’re moving beyond putting roadblocks in front of abortions to actually prohibiting them," Troy Newman, president of the anti-choice group Operation Rescue, gloated to the Los Angeles Times. "This swings the door wide open."
Newman added that he and other anti-choice activists will now push legislation in the states to: ban all abortions of viable fetuses, unless the mother’s life is endangered; ban mid- and late-term abortion for fetal abnormalities such as Down syndrome or a malformed brain; require doctors to tell patients in explicit detail what a procedure will involve, show them ultrasound images of the fetus, and warn them that they may become suicidal after the procedure; and lengthen waiting periods so that women must reflect on such "counseling" for several days before obtaining an abortion.
Ever since the Roe decision in 1973, conservatives have chipped away at abortion rights bit by bit, to undermine the law as a whole–first by denying federal funds for poor women to obtain abortions, then by adding restrictions like mandatory waiting periods, parental consent laws and other burdens on a woman’s right to choose.
As the New York Times commented, "For anti-abortion activists, this case has never been about just one controversial procedure. They have correctly seen it as a wedge that could ultimately be used to undermine and perhaps eliminate abortion rights eventually.
"The court has handed the Bush administration and other opponents of women’s reproductive rights the big political victory they were hoping to get from the conservative judges Mr. Bush has added to the bench. It comes at a real cost to the court’s credibility, its integrity and the rule of law."
George W. Bush applauded the ruling, sanctimoniously calling the ban a reflection of the "compassion and humanity of America." He was joined in his approval by every Republican presidential candidate, including supposed "social moderate" Rudolph Giuliani.
For their part, Democratic Party leaders–including presidential candidates Hillary Clinton, Barack Obama and John Edwards–strongly condemned the ruling, rightly calling it an attack on abortion rights overall.
Sen. Barbara Boxer and Rep. Jerold Nadler reintroduced the "Freedom of Choice Act"–legislation promised, but not passed, under the Clinton administration that would bar the government from interfering with a woman’s right to choose to bear a child or to terminate a pregnancy–the day after the ruling.
This marks a change from just two years ago, when Clinton and other Democratic Party leaders talked about the need for their party to play down support for abortion rights in order to curry favor with moderate and conservative voters.
The Democrats’ newfound confidence in speaking out on behalf of abortion rights is welcome, but it should be remembered that they themselves helped pass the federal ban on intact D&Es back in 2003–with 17 Democratic senators and 63 Democratic representatives voting in favor.
The Democrats have largely gone along with previous restrictions, including parental consent and notification laws, mandatory waiting periods and more–while conceding ideological ground to the right by using language not dissimilar to Kennedy’s in this latest ruling about abortion causing "regret" and harm.
What is truly "a regret" is the consequences of the anti-abortionists’ offensive and the failure of the Democrats to mount a defense of women’s rights. Today, at least 87 percent of counties in the U.S. have no abortion provider–a stark reminder that in many ways, abortion is a "right" in name only.
Relying on the courts or politicians to protect our rights is a losing strategy. Abortion rights were won in the first place because there was a movement in the 1960s and ’70s that organized hundreds of protests across the country, demanding not only access to abortion, but equal pay, child care and an end to discrimination.
We need to return to that strategy–of speaking up without apology for a woman’s right to control her own body–to turn back the anti-abortionists’ offensive.
NICOLE COLSON is a reporter for the Socialist Worker.