Infantilizing Women To Make a Point

By Mimikatz

The Supreme Court upheld the federal late-term abortion restrictions this morning in Gonzales v. Carhart (yes, that Gonzales), with justice Kennedy writing the majority opinion, joined by Roberts and Alito, and Scalia and Thomas, who in a separate concurring opinion basically said Roe v. Wade should be overruled.  Justice Ginzburg wrote a blistering dissent, in which Justices Stevens, Breyer and Souter joined.  There are excellent commentaries at Scotusblog and Balkinization, as well as observations by Ed Kilgore and pretty much everyone else in the blogosphere.

In terms of the issues we follow here, there are many implications.  First, the language used by the majority truly infantilizes women, making it clear that Congress knows better than they how they ought to deal with the kind of desperate situations that call for late-term abortions.  And not only does Congress know better than pregnant women, it knows better than the medical profession.  For those who thought Justice Kennedy had some intellectual integrity, the majority opinion is a major disappointment.  For example, the Act in question made illegal a form of abortion known as "intact dilation and extraction" in which the fetus was extracted, during which procedure it died.  There are situations in which that is the medically preferred option.  But now women in that position will have only the choice to carry the fetus, with whatever consequences that might entail, or undergo a non-intact d & e, during which the fetus is extracted essentially in pieces.  No fetuses are thus saved by this opinion, but some women might suffer serious health problems or even death, because the law survived even without exceptions for the life of the mother. Why?  Just to make a point.

Second, abortion is back front and center, despite what  Rudolph Giuliani might have wanted.  Roe survived, but only because the majority did not explicitly overrule it.  What they did overrule, by implication only, of course, was O'Connor's somewhat sophistic "undue burden" test, under which a law survived unless it created an "undue burden" on women.  Death is evidently not an undue burden when there is a point to make about abortion.  Because Roe survives, there will be new laws passed and new cases filed to test just how far states hostile to abortion can burden a woman's right to choose whether to finish or end a pregnancy.  This, in turn, will affect the most those states in which a majority is hostile to abortion.  California is not going to outlaw the procedure, or even make it more difficult.   New York undoubtedly will not.  But other states will, enlarging the gulf between states where science and individual freedom are valued and those which seek comfort in a rigid religious view.  The more divided the state, the more contentious will be the debate, perhaps dwarfing other important legislative priorities.  As more and more restrictions are placed on abortions, poor and young women and women in rural and exurban areas will suffer the most.

Finally, the Court majority has made it much more difficult to bring what is called a "facial" challenge to a statute.  Rather, only a woman who, herself, is directly affected by the restriction can challenge this law as it applies to her.  This is of a piece with Chief Justice Roberts' crabbed views of standing--the federal courts are not for little people, but for litigants with serious commercial interests.

As many have said, this case illustrates that elections have consequences, and so does voting for laws and judges, a point now coming hoime to roost for several Dem Senators.  My sense is that the decision will help the Dems where they are already strong and not do much for the GOP where it is strong.  In the purple states it will marginally help the Dems, particularly, I hope, with young people.  Most of all, it makes it crystal clear why Bush should not have another Supreme Court nomination approved by the Democratic Senate.  Not one, and not one more federal judge as long as the Bush "Administration" refuses to acknowledge Congress as a co-equal branch of government.

Comments

[Mimikatz]

And I neglected to mention that the opinion refers to the obstetricians and gynecologists throughout as "abortion doctors."

[Mimikatz]

Or maybe infantilizing women WAS the point. That seems increasingly likely to me.

[emptywheel]

And I neglected to mention that the opinion refers to the obstetricians and gynecologists throughout as "abortion doctors."

Does this mean we can now refer to Cogburn as "Senator Abortion Doctor"?

[emptywheel]

Coburn.

[4jkb4ia]

I thought the act as passed did have an exception for the mother's life, and the debate was about whether one for health was necessary.

[Mimikatz]

The act as passed said it was never medically necessary, even though it had an exception for the life of the mother. And, as I said, it does not prohibit abortion of a non-viable fetus, including one that is killed by the procedure, but it does prohibit intact D&E before viability. It unnecessarily creates medical uncertainty.

[Coral]

Mimi, Thank you for this thoughtful summary. I am numb, as I still remember the days when abortion was illegal and many desperate women died.

[emptypockets]

In the purple states it will marginally help the Dems, particularly, I hope, with young people.

Will this be outweighed by the number of conservatives drawn to the polls by reinvigorated Republican state party anti-abortion ballot measures?

Basically, will anti-abortion propositions be the anti-gay marriage props of 2008?

[knut wicksell]

I think this was a Pyrrhic victory for the right. It's the last one, and it will be overturned by the Congress and President elected in 2008. Of the hot-button issues, this is the one that will turn. I have no hope for gun control, despite the VPI carnage. The people who oppose abortion are fervent and they were able to make their way because the rest of the population was not fervent. But times have changed. I think this is like Dred Scott. The straw that broke the camel's back. So bad news, with a silver lining.

[oldtree]

what can we, the people do to remove such justices that are so out of touch with the reality of their country?
does your state have the power to create initiatives for the voters to approve?

for if so, like our state, we can create and have the public vote for such impeachments. If we do not have states that allow their people that democratic right amidst this purile republic's record of corruption, then there is a real problem.

The constitution allowed for states to act to remove their government, it takes a majority. Would one consider the 70% of the people ready to vote on real issues, rather than unreal actors that get elected to make money, and then due to the perverse nature of our electoral system, must continue to make money instead of serve the people of their districts and states?

it is broken, and it is time for some smart people to write new legislation that the people can vote for. It may be the best chance we will have to save this country from absolute corruption.

isn't it time?

[oldtree]

excuse me, a super majority. that is less than the 70%

[pseudonymous in nc]

Dahlia Lithwick is good on this:

[Kennedy's] opinion blossoms from the premise that if all women were as sensitive as he is about the fundamental awfulness of this procedure, they'd all refuse to undergo it. Since they aren't, he'll decide for them.

She scathes well.

I think this was a Pyrrhic victory for the right. It's the last one, and it will be overturned by the Congress and President elected in 2008.

No, I think it's a scary win. It opens the door to legislative challenges towards all surgical abortions, and more than that, creates a culture of intimidation that will help drive out providers in areas where it's already difficult to get an abortion. Even with a repeal -- and so you think the Senate will ever have the numbers for that? -- those doctors aren't going to come back quickly.

[Jodi]

I'm with Justice Kennedy in considering late term partial birth abhorrent.

There is no penalty for a woman undergoing the procedure, but up to two years for the doctor performing it.

My brother, who is now an gynecological-oncologist says that if a women's life is in danger, they will slice and dice as necessary.

... scary... and he is the one mom said wouldn't put the worm on his hook. My big brother or mom had to do it for him.

[pseudonymous in nc]

Shorter Tokyo Jodi: I do not understand either the law or the medical reality surrounding this, but it sounds icky.

Never mind, as Stevens noted in an earlier case, that the 'eew! icky!' argument also entails defending regular D&E, which entails dismemberment of the fetus in utero.

The amount of bullshit on display would make a rancher blench.

[limra]

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[Jodi]

Shorter Tokyo pseudonymous in nc,

you just made me blench (whatever that is).

[orionATL]

thank you mimikatz.

the one issue that bothers me the most about all anti-abortion rhetoric and law is that

i cannot accept that the state and its political and legal systems have the moral authority to take the decision-making capacity and right

out of the hands of the one person

who cares the most and

bears the most pain - physical and mental -

the pregnant woman.

i find this intrusion of the state into personal, private life completely unacceptable.

this substitution of the decision-making capacity of the state for that of the woman

is all the more abhorrent

given the politics involved, to whit,

because christian fundamentalists are the voting "troops" of the right wing,

allowing anti-abortion law and judicial decisions is the pay these soldiers receive,

thereby insuring their loyalty and maintaining or enhancing the power of those right-wing politicians who depend on the fundamentalist troops.

with respect to lines of argument regarding "caring" for life,

it bothers me greatly that the anti-abortion debate is waged on the battleground of the fate of a homunculus who has never seen the light of day,

rather than on the physical, medical, and emotional needs of a living, breathing human being of child-bearing age.

finally, the verbal cruelty of this debate vis a vis the pregnant woman is unforgivable.

[Mimikatz]

California has a constituional right of privacy that has been held to cover the right to choose whether to carry or end a pregnancy. That is the affirmative tack.

The effects depend on the kinds of abortion restrictions that are put on the ballot, and where. In South Dakota the referendum on the outlawing of abortion defeated the law. Apparently when faced with the actual prospect of people doiing jail time, opponents weren't so sure, and proposed exceptions just intensified the moral dilemma.

Such things as parental consent, waiting periods and scary information are popular laws in part because many people don't like the idea of "casual" abortion. They think abortion is wrong, and wish it were less prevalent, even if they don't really want to send doctors much less women to jail.

I agree that those who want to preserve choice should use contraception as a wedge--that is, while the right put the wedge at the ickiest procedure they could think of to isolate total pro-choicers, we who support choice should put the wedge at contraception, to split off the anti-woman, anti-sex folks. Now when abstinence education has been shown to be ineffective would be a perfect time. Safeguard access to reliable information and contraception, educate kids to be more responsible. But this is a medical procedure, and until men get pregnant, it is the woman's right to decide, and it ought to be just as safe and available as any other procedure.

[John Casper]

blench: To draw back or shy away, as from fear; flinch.