Politics & Policy

Gruesome and Constitutional

On Roe and partial-birth abortion.

Here are as some useful givens in the matter of the partial-birth litigation.

In 1973, in Roe v. Wade, the Supreme Court promulgated (vouchsafed?) a right to abortion.

Although the decision was qualified (abortions were not automatically approved for the second and third trimesters), it was quickly interpreted by both sides as being pretty much categorical in its interpretation.

The advocates of Roe read into the language, and quite reasonably so, that the health of the mother was the critical consideration. If her health were invoked as a reason to proceed with abortion, then that consideration became paramount.

Critics of the decision stayed up late at night, and continue to do so, seeking to find means to keep abortion rights from being categorical, in the sense that the rights to free speech are such. Does the right to abort mean that it is illegal to require a girl to consult with her mother? Do abortion rights specify any limitation on the interval between when an abortion is sought after, and executed? Can modifications be justified when related to the age of the mother? The primary matter that needed thought was the whole business of the health of the mother. When a doctor is asked to cite health as a reason to go forward into the later trimesters, is he actually talking about health defined as survival?

The attempt has been made to modify abortion rights to relate in a substantial way to the “health” of the mother. Is it supposed that, if the abortion were denied, the mother would die? Be crippled?

But formulations so arrant were not acceptable to the totalists. They held, and continue to do so, that the health of the mother is subjectively relevant. A doctor can advise that the health of the mother requires abortion because otherwise the mother would become morose, or disoriented, or demoralized, or whatever.

The battle line became, just what is it that constitutes endangered health? Can legislation limiting abortion hope to succeed by objectifying health as actually involving the mother’s physical health?

When last year Congress passed a law outlawing partial-birth abortions, the emphasis was on the special nature of such procedures. They were described by Judge Richard Conway Casey–who went on to declare the law prohibiting them unconstitutional–as “gruesome, brutal, barbaric, and uncivilized.” Never mind, said Judge Casey, the order of things requires the court to reject the law as contradicting constitutional findings on women’s rights.

The ruling of Judge Casey was greeted with high excitement and enthusiasm by the law’s critics. Louise Melling, director of the ACLU’s Reproductive Freedom Project, said her group was thrilled by the ruling. “We can only hope, as we have decision after decision after decision striking [down] these bans, saying they endanger women’s health, that the legislatures will finally stop.”

Three lawsuits were filed, after the law was passed. We heard from the San Francisco district court, now New York, leaving Lincoln, Nebraska. However the court there goes, the law is clearly headed for the Supreme Court, where the U.S. will argue the constitutionality of the congressional ban, and the totalists will insist that not this restriction on abortion rights, nor tomorrow’s restriction, can supervene over the Court’s 1973 decision.

Shannen Coffin was with the Civil Division of the U.S. Department of Justice. He coordinated the government’s defense of the partial-birth-abortion ban in Nebraska and New York. In his view, the Supreme Court has edged us into a severe quandary by the continuing affirmations of Roe as something in the nature of a constitutional charter. When Congress (345 members voted in favor of the partial-birth-abortion ban) responds so massively against what the same judge who invalidated the law termed a “gruesome” and “uncivilized” practice, one looks for some prospect for relief from judicial absolutism. Mr. Coffin believes that the forthcoming election is critical, inasmuch as President Bush is the most prominent sponsor of the partial-birth proscription and indirectly, the sponsor of the movement that seeks to mitigate excesses. He hardly expects that a Republican victory would bring on a modification in judicial absolutism, but he does believe that political action is needed to persuade the Supreme Court to modify its interpretation of Roe, and appease the general sentiment opposed to partial-birth abortions. These are not frequently resorted to–at maximum figure of 130,000 per year–and in the testimony of eminent physicians, never needed for the health of the mother reasonably defined.

A political event is needed to affirm that a democratic society is free to react against uncivilized practices, athwart abstractions of the judiciary.

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