Has anyone else been walking around bent-over lately? Because it feels like the U.S. Supreme Court delivered a big kick in the gonads to American women and the men who like to have sex with them with last week’s decision supporting a federal ban on an abortion procedure.
The court upheld the 2003 Partial-Birth Abortion Ban Act, brushing aside the fact that it doesn’t contain an exemption for dangers to a woman’s health. Ignoring the evidence from real doctors, the court decided there’s no real medical need for this procedure. Given that the Supremes are now setting themselves up as experts in women’s health, I wonder if they’re going to start taking care of Pap smears and mammograms too.
Certainly this is part of an incremental plan to overturn Roe v. Wade, and it was hailed as such by those opposed to abortion rights. As Justice Ruth Bader Ginsberg, long may she judge, wrote in a dissenting opinion, the act and the court’s support of it “cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court.”
One striking thing about this decision is how clearly it shows that for many opposed to abortion rights, the issue has less to do with protecting fetuses than with controlling women. As Ginsberg, l.m.s.j., wrote, the act “saves not a single fetus from destruction.” The law bans one kind of procedure, intact dilation and evacuation, and the court opinion relied on that fact, that other abortion methods are available, to argue that the act isn’t thus invalid.
But banning the procedure, which is used only for later-term abortions, including on fetuses with severe defects and that wouldn’t survive after birth, will “gravely endanger” women’s health, according to the American College of Obstetricians and Gynecologists, the doctors who actually treat women. There are instances when intact dilation and extraction is medically preferable, the association says. And if it’s medically preferable, that means there are times when use of the procedure could help avoid complications – complications that might cause difficulties for future pregnancies.
So while on the one hand the decision shows no concern with present or future fetal health, on the other hand it also relies on really antediluvian arguments about how li’l women just don’t know what they’re doing and need to be protected from making bad old decisions. The New York Times has some analysis of this point. (Ginsberg, l.m.s.j., writes powerfully about Justice Anthony Kennedy’s comments in this vein. BitchPhD is right in suggesting that you should read Ginsberg’s dissent if you want to feel there’s “still someone on the court who gets it.”)
Activists on both sides of the abortion debate have been galvanized by this decision. But looking ahead to the presidential election, is this blatant attack on women’s (not to mention doctors’) rights, going to drive more votes for Democrats? Abortion rights supporters have long tried to rally their side by arguing that the freedom to choose an abortion is on shaky ground. Now, Planned Parenthood, for example, reportedly just got a big outpouring of support. This time it seems the wolf really is coming after the sheep. The Supreme Court decision was a sharply powerful demonstration, and the clearest to date, of not only the actual removal of a freedom, but also how shaky all abortion rights are.
Regardless of the opportunity to choose a Supreme Court justice, the next president, whoever he or she might be, could also provide a counterweight to a conservative court. And after the court decision, the presidential candidates stuck to party lines. The Democrats came out strongly against the decision, while the Republican candidates, including “pro-choice” Rudy Giuliani, supported it. Most Americans support keeping abortion legal, but with certain limitations; in any case, about a third of American women will have had abortions by the age of 45. The party faithfuls have their clear positions, but will the Supreme Court decision strike those in the middle as threatening what should remain legal, or as properly removing an unpleasant option?
The decision could also drive conservative Republicans who see victory over abortion rights in their grasp. I just hope we’re not forced one day to rely on the Dutch abortion ship to come sailing to our rescue.