Chicago Tribune Editorial - The court takes on abortion
Chicago Tribune Editorial - The court takes on abortion
Copyright © 2007, Chicago Tribune
Published April 19, 2007
The battle over a medical procedure that critics refer to as partial-birth abortion has been long and bitter, and it is a long way from being over. Seven years ago, the Supreme Court struck down a Nebraska law banning the operation -- and that court might have also struck down a federal version passed in 2003. But two justices have been replaced since then, and the balance of views on abortion rights has shifted a bit. On Wednesday, the court upheld the law by the narrowest of margins, 5 to 4.
The decision validated efforts to eliminate an abortion method that is exceptionally gruesome and disturbing. It deferred to public sentiment on a matter of intense controversy where the Constitution provides scant guidance -- exactly the sort of issue where the judiciary should be least eager to intrude. And it approved the law only because Congress gave doctors clear notice what they may and may not do, which the Nebraska law left unclear.
But it required the court to retreat somewhat from its past emphasis on safeguarding the health of pregnant women above all else. And it underscored the mistake Congress made in not providing a narrow exception to permit this option when needed to avoid serious harm. (It does have an exception to preserve the life of the mother.)
The procedure, whose medical name is "intact dilation and evacuation," is used in some second-trimester abortions. It involves extracting the entire fetus, except the head, from the mother's body, and then puncturing the skull to remove the brains. Even some abortion-rights supporters in Congress, seeing it as intolerably close to infanticide, voted for the ban.
Many physicians, however, think that in some instances, it is the safest technique. Groups like the American College of Obstetricians and Gynecologists argued that depriving physicians of this option would create real dangers. Congress could have accommodated the legitimate interests of both sides had it specified that this method should be used only when it is essential to prevent serious harm to the mother. The absence of such a provision, after all, was one reason the justices invalidated the Nebraska law in 2000.
This time, the court reiterated the ban would be unconstitutional if it would clearly endanger the health of women. But as Justice Anthony Kennedy wrote in the majority opinion, there are accepted alternatives, and "there is documented medical disagreement whether the act's prohibition would ever impose significant health risks." Where there is uncertainty, the court said, Congress has the authority to regulate according to its best judgment.
The majority gave no signal that the court is prepared to overturn the 1973 decision finding that the Constitution protects the right to abortion.
And this is likely not the final word on partial-birth abortion. The opponents of the law, which has been blocked from taking effect, had the heavy burden of proving that it was unconstitutional without any evidence of how it would be applied. The majority justices stipulated that they are open to a different decision if its alleged dangers prove real.
Congress and the court have taken the view that a ban on partial-birth abortion won't make women less safe. Even critics of this decision will be hoping they're right.
Copyright © 2007, Chicago Tribune
Published April 19, 2007
The battle over a medical procedure that critics refer to as partial-birth abortion has been long and bitter, and it is a long way from being over. Seven years ago, the Supreme Court struck down a Nebraska law banning the operation -- and that court might have also struck down a federal version passed in 2003. But two justices have been replaced since then, and the balance of views on abortion rights has shifted a bit. On Wednesday, the court upheld the law by the narrowest of margins, 5 to 4.
The decision validated efforts to eliminate an abortion method that is exceptionally gruesome and disturbing. It deferred to public sentiment on a matter of intense controversy where the Constitution provides scant guidance -- exactly the sort of issue where the judiciary should be least eager to intrude. And it approved the law only because Congress gave doctors clear notice what they may and may not do, which the Nebraska law left unclear.
But it required the court to retreat somewhat from its past emphasis on safeguarding the health of pregnant women above all else. And it underscored the mistake Congress made in not providing a narrow exception to permit this option when needed to avoid serious harm. (It does have an exception to preserve the life of the mother.)
The procedure, whose medical name is "intact dilation and evacuation," is used in some second-trimester abortions. It involves extracting the entire fetus, except the head, from the mother's body, and then puncturing the skull to remove the brains. Even some abortion-rights supporters in Congress, seeing it as intolerably close to infanticide, voted for the ban.
Many physicians, however, think that in some instances, it is the safest technique. Groups like the American College of Obstetricians and Gynecologists argued that depriving physicians of this option would create real dangers. Congress could have accommodated the legitimate interests of both sides had it specified that this method should be used only when it is essential to prevent serious harm to the mother. The absence of such a provision, after all, was one reason the justices invalidated the Nebraska law in 2000.
This time, the court reiterated the ban would be unconstitutional if it would clearly endanger the health of women. But as Justice Anthony Kennedy wrote in the majority opinion, there are accepted alternatives, and "there is documented medical disagreement whether the act's prohibition would ever impose significant health risks." Where there is uncertainty, the court said, Congress has the authority to regulate according to its best judgment.
The majority gave no signal that the court is prepared to overturn the 1973 decision finding that the Constitution protects the right to abortion.
And this is likely not the final word on partial-birth abortion. The opponents of the law, which has been blocked from taking effect, had the heavy burden of proving that it was unconstitutional without any evidence of how it would be applied. The majority justices stipulated that they are open to a different decision if its alleged dangers prove real.
Congress and the court have taken the view that a ban on partial-birth abortion won't make women less safe. Even critics of this decision will be hoping they're right.
posted by Carlos T Mock at 8:28 AM
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