Five to Four

Today’s decision is alarming. It refuses to take Casey and Stenberg 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). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.

This statement comes from a dissenting opinion written by Supreme Court Justice Ruth Bader Ginsberg. It’s actually well worth reading in entirety, because she essentially shredded the majority opinion on Gonzales vs Carhart, the controversial Supreme Court decision regarding “partial birth abortion” made last week.

I took issue with the decision on a number of levels.

The first has to do with the purpose of the Supreme Court. The Court is supposed to interpret and defend the Constitution. This usually involves interpreting laws in the context of the Constitution, to determine whether or not they are truly legal. The Supreme Court is not in place to dictate the practice of medicine. The law banning partial birth abortion should have been struck down because it was unsound and illegal, and I am very disappointed by the Supreme Court’s decision to uphold the law, even after it had been deemed unconstitutional by numerous lower courts. I am also surprised that the majority justices felt comfortable in telling doctors what to do.

It takes a long time to become a Supreme Court justice. Years of law school and clerkships must be undergone before a justice can be appointed. Doctors, as a general rule, do not tell the Supreme Court what to do, although they may testify in favor of or against various issues in the Court. Likewise, the Supreme Court should not be giving orders to the medical establishment. Measures to protect patients, such a establishing the FDA to evaluate drugs, or setting standards of certification for doctors, are reasonable. Laws outlawing aspects of medical practice which are generally supported by the medical community are not.

There are numerous laws in place to protect patients from unsafe and dangerous procedures, in addition to a standard of practice which is widely accepted throughout the medical community. This is not unreasonable, and is, in fact, something which I support. The practice of medicine should be subject to general regulation which is designed to promote a high standard of care for patients. But to ban a specific procedure…this is a little bit more complex, especially since the procedure surrounds an emotionally charged issue.

What is being banned, exactly, anyway?

This is a topic of some discussion in the medical community, because many doctors are not sure, exactly, what a “partial birth abortion” is. This is because the term is political, not medical. It is assumed that the ban refers to a technique known as intact dilation and extraction, but the language of the law is unclear. This puts doctors at risk, because they could potentially be prosecuted for a number of women’s health procedures, since the term “partial birth abortion” is so nebulous. I’m sure that this is a deliberate choice.

In a letter to the New York Times, Dr. Deborah Oyer wrote:

Here’s what Wednesday’s Supreme Court decision means to me and my patients:

Now, when I want to act in my patient’s best interest, I must stop and call a lawyer to find out what I’m permitted to do under the law or face federal prosecution.

Now, when my patient trusts me to do what’s best and safest for her health, I must tell her that my hands are tied by justices who have put ideology above scientific evidence.

Now, when I sit talking to my patient, a little voice at my ear will tell me that politicians know best.

Now, when I work in my office and my operating room, I will wonder who’s a potential informant.

This ruling insidiously injects government into the personal decisions a woman makes with her physician. It is an insult to a woman’s right to protect her own health and to a physician’s ability to advise her.

I am troubled by the abridgment of my right to choose represented by this Supreme Court decision. But I am more concerned, in a way, about the legal precedent that this sets for the medical community. When I meet with a doctor to discuss my health and options, I expect him or her to provide me with an honest, useful opinion informed by years of medical school and professional practice. I do not like the idea of someone else looking over my doctor’s shoulder, dictating what I can and cannot be told, or which procedures can be performed in the event of medical need.

What happens when the political establishment decides that appendectomies are amoral? Or that pulling rotten teeth goes against their religion? Or, for those of my readers (hopefully mercifully few) who continue to think that women undertake abortion as a cosmetic procedure, or just for kicks, what happens when breast implants are outlawed? Liposuction? Tummy tucks?

Abortion is a very sad and difficult thing. In a medical emergency which requires a highly invasive and traumatizing procedure like intact dilation and extraction, the decision to abort is not taken lightly. Most women who abort at that stage do so because of a truly pressing emergency which threatens their lives. In other cases, the fetus may be in severe distress, or already dead. It is a tragedy to have to perform this procedure…and most doctors do not perform it. Indeed, many doctors never have, and don’t know anyone who has, although medical schools do offer training in it.

If you believe that abortion is wrong, don’t get one. If you happen to be a doctor, don’t perform one. This is an issue of choice on all sides: I would never force a women to get an abortion, or even tell someone that she should get one. Likewise, I would appreciate the freedom to get an abortion if I ever need one, and the freedom to save my life if I am threatened by a fetus. It’s simple self defense, and as far as I know, self defense is legal.

I know that I’m known for not being a big baby fan, but I am also not a baby killer. Terminating a pregnancy is a difficult choice, and I support women who feel like it is the best choice. Carrying on with a pregnancy can be equally difficult for many women, especially in a society which provides limited social services to parents and children. I respect and support women who choose to bear their young to term, even if they later give them up for adoption because they cannot care for them.

I remember when I was very young, my father took me to a commitment ceremony between two of our friends. After the ceremony, I remember walking up to them and saying something along the lines of:

“Congratulations on your marriage! I’m sure that you two will live many happy years together, because you obviously really like each other.”

They smiled and thanked me, but a sort of sadness seemed to linger in their eyes.

Later, driving home, my father said:

“It was very nice of you to congratulate them, but you know, they didn’t actually get married.”

“Oh,” I said. “Why not?”

“Well, because they cannot get married, legally.”

“But why not? They love each other, right?”

“Well, some people believe that two men should not marry each other.”

“Right, but, I mean, that doesn’t mean that it should be illegal. I mean, I don’t think that people should eat meat*, but that’s not illegal!”

“Well, in this country,” he said, “a lot of decisions seem to be based on moral feeling, rather than rationality.”

“Well,” I said, “that’s dumb.”

I’ll stick by that, even today. It’s dumb that other people get to force their moral codes on me. And it’s really dumb, and dangerous, that the Supreme Court allows them to do that, especially since I rely on the Supreme Court to protect me, as a citizen of the United States. I just sent a big chunk of money to the Federal Government, and I’ll bet some of that went to pay those justices for their work.

In a way, although I am much older than I was when that conversation occurred, I still don’t really understand why people’s feelings dictate the letter of the law, and why people care so much about what other people do. A couple of years ago, a friend of mine got pregnant, and because she was a devout Christian, she felt that her only choice was to have the baby. I didn’t criticize her for that choice, tell her she was a bad person, question her morals, and picket her house. Yet, had the situation been reversed, and had I chosen to get an abortion…she probably would have come down hard on me, because she would have felt that she was in the right.

I guess I’m just not as confident as some people are about what is right and wrong. I can only choose for myself, and let others do the same.

Today, “partial birth” abortion. Tomorrow…who knows?

*This was back in my vegetarian days.

[Supreme Court]