Thursday, April 19, 2007

Update: SCOTUS Upholds Partial Birth Abortion Ban

After reading this opinion a little closer, I still don't understand how they can think this squares with Casey. From a practical standpoint, I don't think this has as much of an effect on women as it does on doctors.

The law was challenged on "void for vagueness" grounds. The respondents agreed that it covered intact D&E abortions, but that it's additional reach was unclear. The Court disagreed, finding in part:

Second, the Act’s definition of partial-birth abortion requires the fetus to be delivered “until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother.” §1531(b)(1)(A) (2000 ed., Supp. IV). The Attorney General concedes, and we agree, that if an abortion procedure does not involve the delivery of a living fetus to one of these “anatomical ‘landmarks’ ”—where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the mother—the prohibitions of the Act do not apply. Brief for Petitioner in No. 05–380, p. 46.
I don't think this is remarkably clear. The Act only applies if any part of the fetal trunk past the navel is outside of the body of the mother. This raises a few problems. It seems that whether or not this Act will apply has little to do with either the doctor's or the mother's intentions. I'm not a doctor, but I'm going to guess that how quickly or how far the fetus is delivered is not able to be discerned with any degree of certainty beforehand nor reliably controlled. So whether or not this Act applies is going to depend on a lot of unknowns and pure chance. While there is an intent element to this Act, I'm sure that if and when doctor's are prosecuted for this, the DA is going to try and infer intent when there was in fact an intact D&A performed, and charge for the full crime anyway. For the SCOTUS to say the Act is not applicable without intent does NOT mean that a DA can't charge it and try to prove it.

Second, the Court does not require a health exception because the evidence is inconclusive as to whether or not an intact D&E is ever medically necessary for the life of the mother. As a practical matter, I don't understand why the Court would conclude that the prohibition of a procedure that at least might be medically necessary is constitutional where the evidence is equivocal. If we're dealing a supposed "constitutional right' such that its regulation is subject to heightened scrutiny, I would think that the government would need to establish by some degree of certainty (narrowly tailored? rational basis even) that this procedure was never medically necessary. At least more than "inconclusive."

And file this quote under "paternalistic"

Respect for human life finds an ultimate expression in
the bond of love the mother has for her child. The Act
recognizes this reality as well.

Really? I thought this was a criminal staute

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