Back to Abortion (X 2 Edition)

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So the new Supreme Court, featuring newly minted Bush appointees Samuel Alito and John Roberts (both presumed to be way anti-abortion despite confirmation-hearing testimony that complicates that), will hear a case about "partial-birth abortion," Gonzales vs. Carhart.

The case…involves a law approved by Congress and signed by President Bush in 2003 making it a crime for doctors to perform the procedure known medically as intact dilation and extraction. The procedure, which Bush called an "abhorrent practice," involves partial removal of the fetus from the womb and a puncturing of the skull, and is used to terminate pregnancies in the second and third trimesters.

Doctors who perform the procedure contend that it is the safest method of abortion when the mother's health is threatened by heart disease, high blood pressure or cancer.

More here. Slate's Will Saletan notes that the ban–which has been sidelined by court action so far–affects at most 2,000 to 5,000 cases a year and even if enacted would save no fetuses/babies. Why? The law "doesn't ban abortions beyond a stage of pregnancy; it just regulates the methods by which they're done." More on that here.

Another abortion-related showdown is brewing in South Dakota, whose legislature has passed a measure that "would ban abortion in virtually all cases, punishing doctors who perform one with a $5,000 fine and five years in prison." South Dakota's Republican Gov. Mike Rounds is expected to sign the bill into law. Some context: South Dakota, which went heavily for Bush in 2004, has only one abortion clinic, which performs about 800 abortions a year (though it's not clear how many more are perfomed in doctor's offices and elsewhere). More here.

This is all just in time for the midterm elections, which means plenty of press, of course. I'm not convinced that abortion rights–whether you're for them or against them–is that central for most voters (though it is clearly central to the voting patterns of a small but intense set of voters, some of whom will never vote for a candidate based on the abortion question). I also doubt that, whatever the outcome of these two developments, much will change regarding the availability of legal abortion.

In January, Reason's Jeff Taylor argued that "post-Alito, the [abortion] issue may recede on the national stage."

And writing on the 33rd anniversary of Roe v. Wade, Ronald Bailey noted that the number of abortions is down from the 1990s and that the overwhelming majority of abortions take place in the first trimester of pregancy. He concluded:

Because most Americans remain ambiguously uncomfortable with abortion, our political institutions will fitfully continue to try to narrow the scope of the decision. Nevertheless, the central holding that a woman can choose abortion in the first three months of a pregnancy will not be overturned.

More on that here.

And back on Roe's 30th anniversary, I wrote:

This isn't to say the debate about abortion is "over"–or that laws governing the specifics of abortion won't continue to change over time in ways that bother ardent pro-lifers and pro-choicers alike. But taking a longer view, it does seem as if the extremes of the abortion debate–extremes that included incendiary language (including calls for the murder of abortion providers)–have largely subsided in the wake of a widely accepted consensus. Part of this is surely due to the massive increases in reproduction technologies that allow women far more control over all aspects of their bodies (even as some of those technologies challenge conventional definitions of human life)….

Regardless of whether Roe withstands possible legal scrutiny, regardless of whether George W. Bush gets to pick several new Supreme Court members, and regardless of whether Congress wants to severely restrict abortion rights, the mass public consensus in favor of the status quo virtually guarantees very little substantial change in any direction.

More here. We'll see if Jeff, Ron, and I are on target or not.

NEXT: Knotts, McGavin: Our Present Business Is General Woe

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  1. look for abortion initiatives on the november ballots.

  2. considering that the vast majority of people who become doctors do so to “do well by doing good” and that presumably most doctors who perform the intact dilation and extraction procedure don’t do it for the sheer unadulterated joy of pulling a fully formed baby partway out of the womb, then puncturing its head and sucking out the brain, one is forced to conclude they perform the “partial-birth abortion” because they think its the best procedure. further considering that if Saletan is correct, that the law won’t stop late term abortions, just this method of performing them, then this whole thing is symbolic, and a waste of time, money, and energy.

    if you need to know, I’m pro-life/ anti-abortion, but I don’t think the government should get involved in these decisions

  3. Cheese, man, we should stop referring to these as ‘midterm’ elections and just start calling them ‘second trimester’ elections.

  4. I think the moral issue of abortion is a horse that’s dead and thoroughly flogged. But the political implications of recent developments could be interesting.

    It looks like South Dakota will ban abortion. It passed both houses of the legislature and is waiting on the governor. Looks like they want to create a test case.

    If SD bans abortion, the case will presumably go to the Supremes. If Roe is upheld 5-4, with Kennedy participating in the majority, then anti-abortion/pro-life/anti-choice/insert-preferred-term-here activists might conclude that they just need to hold on a little longer and work a little harder to get one more Justice.

    But what if Roberts or Alito joins in the majority? Will activists become disillusioned and give up? Or will they issue an ultimatum to the GOP?

    I’d like to think that such an outcome would disillusion them so much that the issue would fade away. I’ve made it clear on numerous occasions that I would love for the issue to be resolved once and for all, and I don’t care much for which side wins as long as it just goes away. But I fear that a final resolution is too much to hope for.

  5. would ban abortion in virtually all cases, punishing doctors who perform one with a $5,000 fine and five years in prison

    “They” say abortion is murder. They may even be right, but I think inddivdual women should be the ones making that hard, ugly decision. But if one believes that it is indeed muder, my question is this: Since when do murderers get sentenced to 5 years in prison?

    Can you say intellectually inconsistent?

  6. The South Dakota law wouldn’t even allow rape victims to get abortions. I guess the trauma of being raped isn’t enough–better to spend nine months throwing up before going through a painful and possibly dangerous labor, too.

  7. Does anyone know what the punishment will be for women who do it themselves?

    And does this mean miscarriages will have to be reported to the police, so they can conduct an investigation?

  8. does this mean miscarriages will have to be reported to the police, so they can conduct an investigation?

    I don’t know about South Dakota, but I read that in Portugal (a very conservative country where most poeple oppose abortion), they’re thinking of scrapping their no-abortion laws precisely because the country is getting appalled by some high-profile cases of women being required to prove in a court of law that they suffered a miscarriage rather than had an abortion.

  9. “Regardless of whether Roe withstands possible legal scrutiny, regardless of whether George W. Bush gets to pick several new Supreme Court members, and regardless of whether Congress wants to severely restrict abortion rights, the mass public consensus in favor of the status quo virtually guarantees very little substantial change in any direction.”

    Um, well, yeah, uh, DUH.

    Look, neither side of the ruling party (demopublican) wants this debate to shift too far one way or another. The left energizes its base with shrieks of “Justice _______ or Candidate __________ will overturn your right to an abortion!”, while the right energizes its base with shrieks of “they’re murdering babies!!!

    The true believers on either side, who really want things to change drastically, are a scant few voters, relatively speaking—and so the political machine wouldn’t dare risk giving up its best base-motivating tool this side of “fags gettin’ married” or “there weren’t any WMD’s!”

  10. Cheese, man, we should stop referring to these as ‘midterm’ elections and just start calling them ‘second trimester’ elections.

    …so *then* we can abort them. You’re a genius Doctor!

  11. “I don’t care much for which side wins as long as it just goes away.”

    Like it ever will go away…

    “Nevertheless, the central holding that a woman can choose abortion in the first three months of a pregnancy will not be overturned.”

    What more do abortion fanatics want? If it takes you longer than 3 months to get around to your belated contraception, you should have to carry the baby full term.

    There’s a lot of things far less important that you have to take care of within a few months.

  12. Got it. Even a pro-abortion-rights libertarian should be happy with a stalemate in which abortions are difficult to get because would-be providers fear for their lives, religious extremists encourage violence against them with impunity, and governments at all levels keep trying to narrow what’s allowed and where. The debate’s over; nothing further in terms of safeguarding or expanding women’s reproductive freedom is necessary.

    Because this whole libertarian thing is about liberty for men, like it says in the Declaration of Independence and stuff. Women are actually just property. Or children. I keep forgetting which.

  13. The South Dakota law wouldn’t even allow rape victims to get abortions. I guess the trauma of being raped isn’t enough–better to spend nine months throwing up before going through a painful and possibly dangerous labor, too.

    At least they’re consistent, rather than trying to make their position palatable by saying some abortions are legitimate but not others (the baby-as-punishment tripe)

  14. “I’m not convinced that abortion rights–whether you’re for them or against them–is that central for most voters…”

    It don’t think it has been, because it hasn’t been clear that there was a direct link between voting and the legal status of abortion. The New Republic, for example, ran a piece in 2000 declaring that George Bush was very unlikely to appoint anti-Roe justices to the Supreme Court. If abortion rights actually seem to be under imminent assault, this could change very quickly.

    For over a decade now, it really has been a small cadre of true believes who have been treating abortion as a voting issue. But the thing is, we could be looking at an event that confirms the argument of one side of the true believers, those who have spent the last decade predicting that Republican judges will ban abortion.

    I predict Alito will vote drive over the cliff and doom his party electorally, but that Roberts won’t. Which is to say, Roberts will be true to his testimony before the Senate, and Alito won’t. Again.

  15. Jennifer,

    What percentage of abortions involve a woman who was raped and whose life is threatened by the pregnancy? It was bad enough when you were justifying all abortions being legal, because of the 2% or so that end a pregnancy resulting from rape. But you’re really pushing the envelope here.

  16. if you need to know, I’m pro-life/ anti-abortion, but I don’t think the government should get involved in these decisions

    I’m curious, biologist, what is your reason for being pro-life? If you don’t think the govt should get involved in this decision, you probably don’t consider the fetus/embryo to be a person with rights, so I’m wondering what exactly your problem with abortion is.

  17. there are plenty of things I wouldn’t do that I think are unethical or distasteful that I don’t ask the government to enforce by law. abortion is one of them. I’m a male, so I can’t get an abortion myself, but when I’m involved with a woman, I cooperate in avoiding pregnancy, so the issue doesn’t come up.

  18. and, as I’ve stated on the hit and run comment boards before, pro-life activists who are serious about saving the lives of unborn babies will stop wasting time, money, and effort trying to legally prohibit abortion and will focus their efforts on helping women to avoid the issue by educating them on family planning and offering financial assistance to single pregnant women whose impregnators won’t be financially responsible, etc. continued persuasion/ moral scolding is also a strategy that works in some cases.

  19. Someone upthread commented that a woman ought to get her act together in the first three months and either abort or not. The problem with that is that it’s not possible to diagnose things like Down’s Syndrome before the 2nd trimester. I’m not going to say that there are no purely elective abortions after the first trimester, but the overwhelming majority are instances of serious deformities or terrible medical problems with the mother. The antis in this case, as in all of the others, just write the pregnant woman out of the story, which is necessary because the women in these circumstances are the most sympathetic cases. They wanted the baby, but either learned it had seriously abnormalities or that they themselves were too sick to carry to term. They can’t be portrayed as stupid sluts.

    Yesterday, Andrew Sullivan linked to a “First Things” debate about Paul Hill, the guy who murdered the abortionists in Florida. If the link is still up, go read. None of the writers seriously address women at all, except as murderers or helpless dimwits forced into abortions by parents or boyfriends.

  20. Why on Earth are the anti-abortion activists in South Dakota doing this? Don’t they know that at least five justices on the Court are in favor up upholding Roe?

    Stevens, Ginsburg, Breyer, Souter, and Kennedy. Of those five, Kennedy may be in favor of some restrictions on late-term abortions and other things peripheral to Roe, which is why the late-term abortion law may yet be upheld, but Roe will not be overturned anytime soon.

    And we’re still not positive what Roberts and Alito REALLY think about Roe, although Alito is most likely to the right on the issue.

  21. Another thought: If Roberts. Alito, Scalia and Thomas all want to overturn Roe, the Court still probably won’t take on the case. The five supporters will want to avoid confronting it, while the other four would not want to waste energy on an issue they clearly won’t win.

  22. Why on Earth are the anti-abortion activists in South Dakota doing this? Don’t they know that at least five justices on the Court are in favor up upholding Roe?

    Because either way they win. Either the abortion ban is upheld and they have precident, or it’s overturned and they have another rallying point.

    Another thought: If Roberts. Alito, Scalia and Thomas all want to overturn Roe, the Court still probably won’t take on the case. The five supporters will want to avoid confronting it, while the other four would not want to waste energy on an issue they clearly won’t win.

    But if they don’t confront it then the ban stands. It’s a state issue, which means that it goes directly to the Supreme Court. If the five you cite don’t want to overturn Roe, then they have to act or else have it be overturned by default.

    Although I suspect that if Roberts meant anything he said in his Senate testimony then he’d actually vote against the ban, making it a lot less close than it appears at first blush.

  23. What percentage of abortions involve a woman who was raped and whose life is threatened by the pregnancy?

    A small percentage, Crimethink, no doubt. But if they’re raped and their life isn’t threatened by the pregnancy, then to hell with them, right? That’s what the lawmakers of South Dakota seem to be saying.

  24. Shem-

    The ban won’t stand because a lower court will have to throw out the abortion ban. When SCOTUS avoids a case, the ruling of the lower court stands.

    Besides, SCOTUS only confronts, what, 1 percent of all cases that go before it? Like I said, the four(?) anti-Roe justices won’t waste time on something they won’t win.

  25. The Supreme Court has original jurisdiction in any case where a State is a claimant. That means that the South Dakota law would go directly to the Supreme Court for arbitration, since the lower courts lack jurisdiction over a State’s laws. So no, if the Supreme Court refuses to hear it then the ban will stand.

  26. biologist,

    I get that you find abortion to be unethical. My question is, why do you find it unethical, if the fetus/embryo is not a person and does not have the rights persons do?

    I normally wouldn’t press the issue, but the response you gave seems a little too easy. Much like the responses of politicians who want to satisfy both pro-choice and pro-life voters while promising no action.

  27. Jennifer,

    The “life of the mother” exception, while seemingly a narrow special case, creates a loophole big enough to drive a Mack truck through. Most states had such an exception in their abortion laws pre-Roe, and one technique of getting around said laws was for the mother to threaten suicide, so as to make the pregnancy life-threatening.

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