Balkinization: Banning an Abortion Procedure <span style="font-style:italic;">Because</span> It Protects Womens' Health

Banning an Abortion Procedure Because It Protects Womens' Health

Marty Lederman

Several weeks ago, in Gonzales v. Carhart, the Supreme Court rejected a facial challenge to the federal Partial Birth Abortion Act, even though there is substantial medical evidence that the prohibited procedure, an "intact dilation and extraction," is less of a risk to the health of many women than the alternative, unregulated procedures, including most importantly "standard" dilation and extraction, in which the fetus is dismembered before it is removed from the woman's body.

The Court's decision depended in large part on the following reasoning:

[M]edical uncertainty over whether the Act's prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden. . . . The conclusion that the Act does not impose an undue burden is supported by other considerations. Alternatives are available to the prohibited procedure. As we have noted, the Act does not proscribe [standard] D & E. One District Court found D & E to have extremely low rates of medical complications. Another indicated [standard] D & E was 'generally the safest method of abortion during the second trimester.'

In other words, the Court's decision was predicated on the conclusion that there was a plausible case that a safer form of abortion -- standard D&E -- remains legally available for women in late stages of pregnancy.

But in today's Washington Post, one of the foremost proponents of the law appears to take issue with this aspect of the Court's holding -- indeed, this anti-abortion group appears to argue that the Act's prohibition is especially desirable precisely because the primary alternative method of late-term abortion endangers the health of women.

The Post story reports on a very curious rift in the anti-abortion movement. Five groups have published very prominent ads arguing that the Court's ruling was a disaster for their cause because it gives the impression that the federal law is a great advance for anti-abortion forces, whereasin fact it does nothing to prevent abortions from occurring: Carhart is even "more wicked than Roe," say the ads, because the federal law is "not a ban, but a partial-birth abortion manual" that affirms the legality of late-term abortions "as long as you follow its guidelines." Brian Rohrbough, president of Colorado Right to Life and a signer of the ads, is quoted as saying that "[a]ll you have to do is read the ruling, and you will find that this will never save a single child, because even though the justices say this one technique is mostly banned . . . there are lots of other techniques." Another signatory, the Rev. Bob Enyart, a Christian talk radio host and pastor of the Denver Bible Church, said that the partial-birth abortion ban "has no authority to prevent a single abortion, and pro-life donors were never told that."

These groups are especially angry with Focus on the Family, one of the anti-abortion groups that sponsored the ban and that has most prominently celebrated Carhart.

What is important for present purposes is the response of Focus on the Family to this criticism by its erstwhile allies that the federal law will not prevent abortions.

Nonsense, says Focus's Vice President, Tom Minnery:

"The old procedure [standard D&E], which is still legal, involves using forceps to pull the baby apart in utero, which means there is greater legal liability and danger of internal bleeding from a perforated uterus. So we firmly believe there will be fewer later-term abortions as a result of this ruling."

Got that? The Court upheld the law because the remaining unregulated procedure might be just as safe. Yet according to Focus on the Family, the remaining procedure is markedly less safe for the mother, and that's precisely why the law is a good thing -- because it leaves in place only a procedure that carries a higher risk of danger of internal bleeding from a perforated uterus . . . which in turn leads to "greater legal liability" for the doctors, and, as a result, fewer abortions.

Score one for candor.

Posted 12:35 AM by Marty Lederman [link]

Comments:

Thanks for shedding light on this.

The FOTF statement is deeply troubling. As a person who leans moderately on the pro-life side, this kind of statement does nothing to push the debate forward, and reveals only the contempt that fotf has for its supporters and the judicial process.

To those on the anti-anti-abortion side of things, please do not think these statements represent the position of all on the pro-life side. I, for one, am sickened by them.

I believe firmly in the separation of church and state. My personal arguments against abortion under certain circumstances are based solely on secular ethical and metaphysical views. I have no right to tell you what your spiritual beliefs should or shouldn't be, and I don't believe they have any legitimate place in the abortion debate.

I believe that any moral abortion legislation should include exceptions for the physical life/health of the mother, rape, and incest, and thus disagree with the recent Supreme Court ruling. However, I also believe that there are secular grounds for the legal prohibition of abortion in certain circumstances beyond those covered by Roe. I wish the debate could focus on more significant details such as these, rather than the FOTF mud-slinging and shameful politiking that sadly makes the news so often.

# posted by

Bilbo : 4:02 AM

"In other words, the Court's decision was predicated on the conclusion that there was a plausible case that a safer form of abortion"

I think that somewhat exagerates the case. The existance of a safer form of abortion was merely a supporting consideration, not an actual predicate of the ruling.

In any event, is it general legal doctrine that Congress can not legally ban medical procedures unless there are comparably safe alternatives? News to me. News to Peter Williams, too. Or would be if he hadn't drowned in his own vomit because Congress outlawed the safest medicine for him...

What's going on here is that the Court is finally starting to treat abortion like a normal medical procedure, with all the LACK of protection from arbitary regulation that implies, instead of as some kind of secular sacrament.

Get used to living in the same world as the rest of us.

# posted by

Brett : 6:42 AM

bilbo airs his Christian love --

"The FOTF statement is deeply troubling. As a person who leans moderately on the pro-life side, this kind of statement does nothing to push the debate forward, and reveals only the contempt that fotf has for its supporters and the judicial process."

Thus he cites the FOTF contempt for its supporters, and for judicial process -- but makes no mention of the glaring contempt for women.

# posted by

JNagarya : 10:15 AM

JNagara: Good point. I agree the FOTF statements are hideous in their contempt for:
- women,
- doctors (male and female),
- FOTF supporters,
- the judicial process,
- and probably many other things.

But where do you infer "Christian love" from my prior post? I made no mention of any religious affiliation. Unless your statement was aimed at polarizing the debate (?).

-bilbo.

# posted by

Bilbo : 12:20 PM

"Thus he cites the FOTF contempt for its supporters, and for judicial process -- but makes no mention of the glaring contempt for women."

That's probably because a glaring contempt for women who have abortions is somewhat inherent in the belief that abortion is murder, and does not entail any sort of contemt for women in general.

# posted by

Brett : 12:29 PM

Brett: I don't believe that abortion is the moral equivalent of murder.

# posted by

Bilbo : 12:45 PM

So? We're talking about what FOTF believes, not what you believe.

# posted by

Brett : 12:57 PM

Oh. Right. Well I'm glad I cleared that up then :).

# posted by

Bilbo : 1:00 PM

To the extent that the Carhart decision was based on a factual belief that other forms of D&X existed which were as safe, could that be the basis for a hypothetical future rational Court to revisit and overturn Carhart?

After all, one of the leverage points that the Court used in Lawrence v. Texas to overturn Bowers v. Hardwick was that many of the factual beliefs in the constancy of opinion throughout history and culture on the private acts involved turned out, on further research, not to be true (witness the infamous references to findings in European courts, etc).

# posted by

Ray Radlein : 2:10 PM

Judicial deference to objectively false Congressional findings of 'fact' is pretty much SOP in other areas, from what I've seen. It's right up there with the "enrolled bill" rule, and all the other ways the Judiciary pretends that the Legislative and Executive branches are always acting in good faith, regardless of the evidence to the contrary. This represents is a move by the Court to start treating abortion related laws a tiny bit more like laws on other subjects, and I wouldn't count on litigation strategies which you know wouldn't work on other subjects having better success with abortion anymore.

# posted by

Brett : 3:30 PM

What's going on here is that the Court is finally starting to treat abortion like a normal medical procedure, with all the LACK of protection from arbitary regulation that implies, instead of as some kind of secular sacrament.

Brett, kindly tell me what medical procedures other than abortion are federally regulated. I'm from a family of doctors, I studied bioethics, I worked at one of the largest health care providers in America and I'm currently in law school. Yet your implied claim that the federal government is regulating medical procedures all over the place and abortion is *finally* being treated like the rest is news to me.

There is a huge difference between drugs, which are patentable and can be kept out of the country entirely, and procedures (which cannot be usefully patented -- i.e., not for profit -- and which doctors do without federal regulation except that provided after the fact by tort law). If my dental surgeon had decided to try a new way of yanking my wisdom teeth, as long as it worked, there would be no problem. He would not have broken any law. If he had decided to make a novel pain med for my use after the surgery, he would have been breaking the law.

# posted by

PG : 5:46 PM

The difference between medication and procedure is particularly noticeable when you look at the FDA's treatment of drugs relating to reproductive health: regular oral contraceptive pills, RU-486 abortion pills, "Plan B" pre-implantation pills... all of them were not made immediately available to American women, but instead were vetted -- sometimes very extensively and without clear scientific reason -- by the FDA. (Though the FDA never has been as lame as the Japanese government, which did not permit the Pill until recently, supposedly because its effects on Japanese women were too unknown. Exactly what makes the body of a Japanese woman relevantly different from the predominately white but also every-other-race population of American women is unknown.) This vetting never has been held or even seriously argued as an abrogation of constitutional right. I believe as a practical matter that we ought to have Plan B, and over the counter too, but I have no good constitutional argument for the position. It is the FDA's job, as delegated by Congress, to tell us what drugs are safe for Americans' consumption. It is not the FDA's job to tell doctors which procedures are safe to perform on Americans' bodies.

# posted by

PG : 6:30 PM

While I agree there's no constitutional basis for the federal government to regulate medical procedures, (And IMO, precious little for it to regulate the use, as opposed to actual interstate commerce in, drugs.) I seriously doubt that a distinction between drugs and procedures could survive current commerce clause jurisprudence.

# posted by

Brett : 8:31 PM

This still seems to me to be a clear case of judges who look as though they believe that they have the capacity to render anything resembling good judgement with respect to scientific areas of discipline; perhaps because their area of expertise - law - is very abstract and analytical they think themselves to be scientists.

At least from this instance its clear they lack such ability altogether. They seem unable to disconnect their 'judgement' from politics.

Doctors are still, and always will be, better at medical advice than the best judges. It seems the height of hubris that anyone in the legal discipline should think themselves better informed that those actually versed in a field.

# posted by

John : 9:40 PM

Brett,

You said that "the Court is finally starting to treat abortion like a normal medical procedure, with all the LACK of protection from arbitary regulation that implies." What I was trying to get across is that your statement was absurd, because "normal medical procedures" *aren't* regulated much. Procedures receive some clinical trials, but not nearly to the extent that medication does; studies of effective procedures frequently are retroactive, looking back on a group of patients who received an experimental procedure. (To that extent, they have to deal with many more uncontrolled factors, but also tend to have much larger ns.)

Doctors traditionally have had large discretion in procedure precisely because they are considered to have an individualized knowledge both of their own abilities and of how a particular patient presents. Procedures can be individualized in a way that mass-manufactured medication cannot. You may want to think it's all the same thing, but it's quite different, and there's a reason that even the fairly conservative American Medical Association objected to the D&X ban: it made felons of physicians who went with their best judgment of how to treat a patient.

As pointed out in the post, here we have the advocates of the law acknowledging that it bans the safer method of a second trimester abortion, leaving one that increases the probability of a perforated uterus. Sure, most doctors will prefer to save their own hides and will perform the more dangerous procedure so as to stay within the law. But a small group will disobey the law. Probably no doctor will be found out unless a nurse rats her out, but I'm not a fan of putting people in a position where they feel disobeying the law is the ethical thing to do.

This isn't a position into which doctors are put with regard to medication, because they simply don't have access to a drug if the FDA forces it off the market. The power to perform a safer late term abortion, however, is literally in the hands of every Ob-Gyn trained in the procedure.

As for current commerce-clause jurisprudence, had Carhart argued that issue, the law might have been struck down by a combination of the four liberal justices who dissented, and Clarence Thomas in a concurrence on commerce clause grounds. From what I understand, the law bans the procedure even if it is not in commerce (i.e. not bought nor sold) nor capable of flowing into commerce (as pot purportedly grown for cancer patients is). Precisely because of the dearth of federal regulation of medical procedures generally, I don't think there have been many tests of the commerce clause in this area.

# posted by

PG : 10:32 PM

keep in mind, this is the same demographic that's against a cancer vaccine because they're afraid it would cause the girls to have sex... sex is worse than cancer, right?

# posted by

Anonymous : 1:06 PM

"is it general legal doctrine that Congress can not legally ban medical procedures unless there are comparably safe alternatives?"

Pretty much, yes. Many authoritarians would like to eviscerate that doctrine.

# posted by

neroden@gmail : 3:28 AM