Saturday, April 21, 2007

Is the Glass Actually Half-Full?

This week's US Supreme Court decision upholding the partial-birth abortion ban stunned the pro-choice community, along with the majority of American women who have made it clear that they favor a woman's right to decide on whether to terminate a pregnancy. An interesting guest op-ed piece written by David J. Garrow and published in today's NY Times suggests that the decision is really not that bad when read closely.

THE Supreme Court’s 5-to-4 decision this week, in Gonzales v. Carhart, to uphold the federal Partial-Birth Abortion Ban Act will undoubtedly harm the future reproductive health of some American women, and Justice Anthony M. Kennedy’s majority opinion patronized such women’s ability to make the sad and difficult decisions that late-term abortion often entails.

But let’s not exaggerate what this ruling means. The Carhart decision is an extremely limited upholding of the federal ban, one that promises to affect very few abortion providers and only a tiny percentage of their patients. The most recent and reliable national statistics, from the Guttmacher Institute, show that only about 30 American doctors ever use the “intact dilation and evacuation” method that has now been criminalized. Only some 2,200 of the 1.3 million abortions performed annually in the United States involve the banned procedure.

Moreover, Justice Kennedy explicitly and insistently limited the reach of the new prohibition. ... Reiterating the standard he embraced 15 years ago in Planned Parenthood v. Casey, Justice Kennedy stated that the ban would impose an undue burden if it covered standard dilation and evacuation and thus would be unconstitutional.

Justice Kennedy also declared — repeatedly — that only purposeful violations of the prohibition can be prosecuted. What the law covers is the deliberate, almost-complete delivery of a living fetus, followed by a further intentional act that causes its demise. ...
[Emphasis added]

What Mr. Garrow seems to be arguing is that because the partial-birth abortion process under review only affects a tiny fraction of the abortion procedures used in this country, the decision is so limited in its applicantion that most women needn't worry. In other words, only a few women are affected, so there's really no problem. That argument sounds a great deal like the one offered by the White House in justifying warrantless wiretapping on American residents: "Sure, sometimes we spy on the innocent, but there are so few of those mistakes that no one ought to be upset." In other words, it stinks.

Mr. Garrow seems to anticipate my objection.

Critics have suggested that the ruling vitiates the complete protection of women’s health that the Supreme Court had previously recognized. But though Justice Kennedy’s opinion certainly weakens the extent of that protection, it also quotes a unanimous 2006 Supreme Court ruling to state that the new ban would be unconstitutional “if it subjected women to significant health risks.” “Significant” is not a limitation that women’s health advocates should welcome, but the value and importance of this caveat should not be unthinkingly demeaned or ignored. [Emphasis added]

The whole point of Roe v Wade was that of privacy and a woman's right to it under these difficult circumstances. Chipping away at it by using qualifiers such as "significant health risks" is indeed a limitation on that constitutionally guaranteed right, and one that just opened the door to further limitation.

No, Mr. Garrow: the glass most certainly is not half-full.



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