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Summary Judgment: McCain’s Legal Errors at the Debate, and Why They Matter (Part 1: Abortion & “Health”)

Ed. note: I’d planned this post for next week, but commentary urges otherwise.

Until 2007, no state or federal entity could derogate the health of a pregnant woman in favor of that of an unborn “child.” Gonzales v. Carhart, 550 U.S. ___ (2007), changed all that. Today, against the great weight of medical evidence, the federal government has utterly banned, without exception, the use of the (admittedly grotesque) procedure known to the medical world as “intact dilation and extraction (D&X),” or, pejoratively “Partial Birth Abortion.” I join the chorus of voices decrying D&X as a barbaric practice… but I also join good company in wondering aloud why the religious right, and John McCain, care so little about the health of pregnant women.

Conservatives – even respectable ones – rest their objection to the presence of a “health exception” on the belief that “health” is a fungible term, likely to be abused by women who, in collusion with their doctors, seek to somehow expand abortion simply for the sake of abortion. Even John McCain – in a sign of how far he’s fallen from reason and bipartisanship – took this stance at the last debate, saying, “You know, ['health' has] been stretched by the pro-abortion movement in America to mean almost anything. That’s the extreme pro-abortion position, quote, ‘health.’” [internal insults to Barack Obama's intelligence omitted]

This argument evinces a frankly baffling distrust of doctors, misunderstands and devalues the medical consultation process, and insults the intelligence and judgment of American women by assuming their inability to make responsible medical decisions. While conservative disrespect for, and fear of, medical judgment is nothing new, to impute to doctors and women a desire to end fetal lives “just because” crosses the border into tin foil hat land. These are intensely emotional, personal, and heartbreaking decisions (read one story here), and to style the health exception as a loophole rather than an accommodation for a patient’s legitimate interest in receiving the best medical advice and care possible treats women and their doctors as “enemy combatants” in the culture wars, not as fellow citizens, deserving respect and deference in the exercise of day-to-day professional – and personal – judgment.

To say nothing of endangering lives. D&X/ID&E procedures – like many abortion procedures – present legitimate, important health benefits only ignored at the patient’s peril. ((See Gonzales, 550 U.S. at ___ (GINSBURG, J., dissenting) (blasting congressional scientific cherrypicking at §§ I.B-C).)) It’s fine to romanticize the promise of new life embodied by the fetus – but what of the life that sustains the fetus? Is the mother less sacred than the nascent child? By ignoring the legitimate, medical need for the health exception, McCain & co. stand against their intellectual betters and the great weight of the American medical community.

To the extent that Justice Kennedy disagreed, speaking for the Supreme Court in Gonzales (which limited the health exception for the first time by holding that ID&E/D&X procedures presented no health benefits), he erred, proving that it is, in fact, the pro-life lobby that is most willing to manipulate medicine and redefine “health” for its own gain. In evaluating the same facts, all trial courts and a majority of American obgyns disagreed with the congressional “evidence” that Kennedy rubber-stamped. ((See Gonzales, 127 S. Ct. at 1643–44 (Ginsburg, J., dissenting), citing Carhart v. Gonzales, 331 F. Supp. 2d 805, 1011 (D. Neb. 2004) (“Congress arbitrarily relied upon the opinions of doctors who claimed to have no (or very little) recent and relevant experience with surgical abortions, and disregarded the views of doctors who had significant and relevant experience with those procedures”) and Planned Parenthood Fed’n v. Ashcroft, 320 F. Supp. 2d 957, 1019 (N.D. Cal. 2004) (noting the same).  Specifically, the Nebraska court noted, “91% of the doctors with relevant experience in performing abortions opposed the ban.   Of the eight doctors who presented information to Congress and who had actually used the banned procedure, or some variant of it, seven of them opposed the ban, finding the procedure to be either the best and safest in certain circumstances or possibly so.”  Carhart, 331 F. Supp. 2d at 1009.  See also Gonzales, 127 S.Ct. at 1643 (Ginsburg, J., dissenting), citing Ashcroft, 330 F. Supp.2d at 1019 (“None of the six physicians who testified before Congress had ever performed an intact D&E. Several did not provide abortion services at all; and one was not even an obgyn.”).)) The Supreme Court, unfortunately, sided with pseudoscience.

The legal errors of that position are a topic for another day (and for my own student Note!). The important point is that only one side of the abortion debate is willing to stretch the definition of “health” to reach the desired political outcome, risking lives in the process. If liberals, too, stretch the meaning of “health,” at least they err on the side of trusting medicine.

Next time: “Ledbetter and statutes of limitations; or, will someone get McCain a procedure book?” Also, [bpsdb].

Show Me a Democrat Who’s Not Proud of His Country…

…and I’ll prove that “gullible” isn’t listed in the dictionary. Palin’s continued insistence on the idea that some states, and some types of communities, love America more than others, grows more offensive by the day. How great for her that McCain’s new running mate, Joe the Plumber, echoes her sentiments (@ 2:30). Do we really want four more years of culture war stigmatization of liberals as anti-America? Update: my preferred Joe strikes back.

Join or Die: PUMAs Misrepresent the State of the Law

After last night’s debate, in which both McCain and Obama gave rather full answers to the complex question of abortion, PUMA apologists are out in full force, defending against the claim that John McCain will overrule Roe v. Wade. They argue that because (1) the Court has already had the chance to overrule Roe and it didn’t, and (2) McCain said he wouldn’t require a “litmus test” for his judicial nominees, Roe is safe. Both contentions are dangerously false, and a sure sign that the PUMAs have drunk deeply of McCain’s kool-aid.

First, the Court has not yet had the votes to overrule Roe; thus, they can’t be said to have pulled back from the abyss. While Kennedy is openly hostile to the abortion right and will limit it at every turn, see, e.g., Gonzales v. Carhart, 127 S.Ct. 1610 (2007), he has never supported overruling it. The danger lurking in the background, though, is that a four-justice group in Gonzales – Alito, Roberts, Scalia, Thomas – all support the death of Roe. Any conservative justice added to replace the two likely retirees (Stevens & Souter, both liberal) could put a five-vote anti-choice majority on the Court, and at the first opportunity, likely to be sooner rather than later (thanks South Dakota!), Roe would be gone.

Of course, that depends on whether McCain wants to put anti-choice Justices on the Court. PUMAs are willing to take McCain at his word, and believe that “no litmus test on abortion” means “no anti-choice Justice.” “My friends,” there’s a big leap between those two points.

Most obviously, the “no litmus test” is an absolute, bald-faced lie. George W. Bush put the same empty words to the American people, and look where it got us: Roe is beaten, bloodied, and nearly ineffective in any state willing to strain it, thanks to Justice Kennedy’s “all-but-overrule” philosophy, whose disregard for the health of the mother John McCain shares. But more on that later. PUMAs, you don’t have believe me: Justice Ginsburg, who reaches the same conclusion, is certainly a better source on both feminism and the law. Or, if you want less law and more explanation, Jeff Toobin’s good in a pinch. “No litmus test” is a lie, empirically disproven by the Republican example.

The reason that “no litmus test” is a lie is because it’s actually Republican code-talk. The full phrase, more often said to the Republican base than to the American people at large, is “no litmus test, except for strict construction of the Constitution, and no activist judges.” McCain/Palin’s frequent ramblings about “activist judges” and “strict construction” is an invocation of a manner of constitutional interpretation inimical to Roe and, perhaps more importantly, contrary to a whole host of other vitally important constitutional rules. By saying-without-saying that they intend to overrule Roe, the Republicans are trying to play a trick on American voters and, apparently, PUMAs aren’t in on the punchline. “Strict construction” is a proxy for “no more Roe.” Don’t believe the lies.

What this all comes down to is a matter of trust. If you believe that, for whatever reason, this time the Republicans really aren’t lying about “no litmus test,” and if you’re willing to ignore all countervailing indicators about that phrase’s secret, subtler meaning, pull the lever for McCain. But if you’re tired of being tricked by a party that relies on it to ensnare gullible pro-choice voters, please, take a moment to think it over, and read up on McCain’s legal philosophy. I don’t want to have to say “I told you so.” And your daughters can’t afford to find out when it suddenly matters most:

If you support choice in any form, or women’s rights to equal pay, McCain will betray you. PUMAs, you can’t afford to let your anger over Hillary’s defeat trump the future of women’s rights in America.

What do John McCain, Homer Simpson, and Karl Rove Have in Common?

A love for presumptively illegal robocall/autodialer scams (“The Simpsons” S8E07), of course! But why would the Republican candidate, already facing historically low favorability ratings, further risk his image by endorsing a hyper-negative and factually incorrect robocall scam? Simple. Because it’s effective, and McCain should know: similar efforts cost him South Carolina in the 2000 primaries. Psst. Did you know Barack Obama has a black baby?