In upholding the 2003 federal law banning what anti-abortion proponents have dubbed “partial birth abortion,” the U.S. Supreme Court on Wednesday knocked a chink in the landmark 1973 Roe v. Wade decision that affirmed the right to abortion.
The court gave Congress permission to render its non-medical judgment and dictate to women as they make the most wrenching personal decisions of their lives. The law forces doctors to make medical recommendations based on something other than their best medical opinions – even if the woman’s health is at risk.
Even the acceptance of the term “partial birth abortion” as the standard description of the procedure is a victory for anti-abortion activists. The real medical description is intact dilation and extraction, and it’s relatively rare.
Nearly 90 percent of abortions are performed during the first trimester – or first 12 weeks – of pregnancy. The Guttmacher Institute, which studies reproductive health issues, estimated that about 2,200 of the 1.3 million abortions performed in the United States in 2000 – less than two-tenths of 1 percent – were done using the dilation and extraction procedure, almost always later in pregnancy. The procedure is an alternative to one in which the fetus is dismembered inside the uterus. Some doctors believe it carries a lower risk of infection, bleeding and permanent injury in individual cases.
With abortion foes John Roberts and Samuel Alito Jr. joining the court, anti-abortion forces aim to make Wednesday’s decision the first domino on the way to overturning Roe v. Wade, which would allow states or Congress to outlaw abortion entirely – for any reason. This decision may begin attempts to make abortion illegal little by little – medical procedure by medical procedure.
Wednesday’s decision also points up the enormous power wielded by Justice Anthony Kennedy, the court’s new swing vote after the retirement of Justice Sandra Day O’Connor. Kennedy was in the minority in 2000 when the court overturned Nebraska’s “partial birth” ban, but he joined Chief Justice Roberts, Alito, Clarence Thomas and Antonin Scalia on the prevailing side of this case.
In his majority opinion, Kennedy argued that banning the procedure was good for women because it would protect them from terminating their pregnancies by a method they might not fully understand in advance and that they might come to regret later.
By effectively declaring women incapable of making medical decisions for themselves in consultation with their doctors, he set the stage for tearing down the zone of personal privacy that the Roe v. Wade decision established.
Now the Supreme Court is just another Republlican political machine!