Filed under: Author - ACG,Politics,Religion,Science | Tags: Abortion, Law, Politicized Science
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].
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What do you mean when you say that conservatives say that ‘health’ is used by those who “seek to somehow expand abortion simply for the sake of abortion”?
Let me start off by saying that I’m mostly ignorant of the law involved. I’m going to be assuming a few premises about what the law and its application look like, any or all of which could be wrong. Let me know.
I don’t think many conservatives believe that liberals simply place a positive value on killing fetuses. Abortion “for abortion’s sake” seems to me to just be shorthand for ‘social reasons’ abortion. The idea is that liberals like us want women to have a right to an abortion – one that they can exercise even without a compelling medical reason.
And I think it’s hard to argue against the claim that, if the law bans abortions with health exemptions (which I’m told is basically what Roe allows states to do in the third trimester), individual doctors and individual women are often going to hide under a health exemption when the only real motivation at work is ‘social’. Try a thought experiment: you’re a strongly pro-choice doctor and a patient comes to you seeking an abortion, but you’re not projecting her pregnancy to be particularly risky (though, as with all pregnancies, it’s not at all without risk). She’s not terribly concerned about the health risks either, but she very much doesn’t want to either raise a child or put a child of her own up for adoption. All you’ve got to do is sign a little affidavit saying “I believe it’s in the best interest of the patient’s health that she receive an abortion”, and you’ll have secured for your patient what you believe to be her right. After all, it’s not as if the state is holding hearings concerning every proposed abortion in order to determine if every physician used his best judgment in upholding the law. Even if you wouldn’t do that, it’s got to be tempting (I’d be tempted), and you have to acknowledge that there are lots of people that would do that. If you’re not tempted, imagine further that the patient is a minor. I think the point that health exemptions can be stretched too broadly (relative to the spirit of the law) is a good one, and, if we’re committed to a compromise position a la Roe, we ought to look at ways to address the issue.
That said, yes, it’s very easy for conservatives to go way too far in response, claiming, as McCain implied, that we should throw out health exemptions altogether. I don’t personally have a problem with only paying lip service to seriously restricting late-term abortions, but let’s be clear that abortion bans with vague ‘health of the mother’ clauses don’t yield significantly different real-world outcomes than does ‘abortion on demand’, and that at least some of the reason for this is that a defensible case can be made that the normal risks of pregnancy constitute a threat to the ‘health of the mother’, which is clearly in violation of the spirit of the law.
Comment by Gotchaye October 17, 2008 @ 6:59 pmI think McCain’s premise is that liberals are “pro-abortion”: that’s what PC has been arguing all along, too. Most don’t go as far as Andy Schlafly – who argues that abortion is an “industry” that’s “captured” liberalism – but there are less extreme ways of stating it. It’s possible that it’s simply rhetoric, but they do argue that. Unfortunate.
Certainly the “health” exception could be abused, but I think there are better safeguards than you assume. Of course, I’m not sure, but I’d imagine that state-law clarifies what’s a “health” exception and what’s not, and that there’s significantly greater than zero supervision of physicians, both formal and informal.
Further, to the extent that abuse is possible, if not likely, I think we agree that it’s better to err on the side of health.
Comment by Ames October 17, 2008 @ 7:28 pmI don’t know – I mean, I know they toss around that term, but it seems to me to at most imply that liberals are simply indifferent to fetuses. That’s certainly the feeling I get from PC; I don’t get the sense that anyone serious is saying that we’re just thrilled every time the abortion rate increases. I could be wrong on that, though.
I’m sure that lots of states do a pretty good job on the health exception thing, but I do think that lots of Democratic politicians have a tendency to hide behind vague assurances of general bans with health exceptions as a way of seeming to have more centrist records than they really do. It just bugs me in the same way that lots of the civil union talk bugs me (see Biden at the VP debate). It’s just transparently untrue, like McCain’s “I will not have a litmus test” line at the last debate, and, while I understand that public figures can’t acknowledge the tension there, little folks like us should be able to point to some of this and say “yeah, our side is lying”, even if we think such lying is politically necessary.
And yeah, as I said in the other thread, it seems to me to be up to conservatives to come up with a better way of wording ‘health’ exemptions if they think that they’re currently too broad. There are clearly valid health reasons to get an abortion, and it’s very important that the law allows those, whatever else it does.
Comment by Gotchaye October 17, 2008 @ 8:53 pmI don’t think that the health exception is a case of acknowledged tendency of both parties to, erm, mask their more radical elements. I think most Democrats really believe that the health exception is, or should be, exercised modestly and with the best interests of the mother. I think most also believe that it is. At least I do.
Comment by Ames October 18, 2008 @ 12:03 amYou may well be right. I’m completely ignorant of how health exceptions look on the state level. Do you happen to know anything about the way a particular state does things? My general impression had been that doctors were allowed a good deal of discretion in determining what constituted a ‘health risk’, to such a degree that it’s essentially impossible to prove that any hypothetical abortion isn’t motivated by a concern for the woman’s health. I could easily be wrong, though.
Comment by Gotchaye October 18, 2008 @ 12:20 amI don’t think most liberals are ‘pro-abortion’ and i agree that indifference is the best way to describe it. They simply don’t care one way or another.
I would be fine with a well-defined ‘health exception’ if it meant ending the other 90% + of abortions that happen for social reasons.
Comment by Progressive Conservative October 18, 2008 @ 12:22 amGotchaye, I don’t: I’m trusting doctors and patients to implement the discretion they should have well, and trusting oversight to ensure that they do. If nothing else, I think it’s the better choice than the alternative :-/, but you’re right to note that the potential is there.
I’m, personally, fine with the “health exception” being the only route to abortion in the third trimester. I’m also fine with burdens on the second trimester. But I’m on the side of most of the American people, fortunately, when I express doubts about the desirability of government bans on the first trimester.
Comment by Ames October 18, 2008 @ 12:32 amPrior to Roe v. Wade, abortions for white country families, the ones who are so rabidly “pro-control” nowadays, were taken care of quietly by the family physician. Of course, city girls and minorities had no access to those services unless they were among the rich. Many died. I, personally, don’t care if the doctor signs a card stating that this abortion is required for the health of the mother. It IS required for the health of the mother since the other option far more dangerous to women and children. Pro-control freaks don’t care about that.
Comment by Oldfart October 18, 2008 @ 11:44 amEven in countries with the most permissive abortion rules, there is no evidence whatsoever that women have abortions for frivolous reasons. The anti-choicers are already in tinfoil hat country. (I spent most of my life in Utah. I know these people.)
Comment by llewelly October 24, 2008 @ 3:03 pm…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),”…
Admittedly grotesque? Really, how so?
I ask because both termination and delivery, just like most procedures, involve tissue trauma, bodily fluids all over the place, pulling and tearing, etc. What exactly is grotesque about safe and effective medical procedures?
Gotchaye,
…[an abortion] that they can exercise even without a compelling medical reason.
This reinforces my observation that totalitarian propaganda is most effective.
Medically, carrying a pregnancy to term is riskier than terminating a pregnancy. The extraordinary thing isn’t that some women terminate (as the propaganda would have you believe); it’s that so many women throw compelling medical reason to the wind, assume the risk, and carry to term.
…let’s be clear that abortion bans with vague ‘health of the mother’ clauses don’t yield significantly different real-world outcomes than does ‘abortion on demand’, and that at least some of the reason for this is that a defensible case can be made that the normal risks of pregnancy constitute a threat to the ‘health of the mother’, which is clearly in violation of the spirit of the law.
Here’s what a typical health exception looks like*:
[abortion is banned except] to save a woman’s life or to avert a “substantial and irreversible” maternal health risk of impairment to “a major bodily organ or system.”
The patient has to be on the brink of death or a millisecond away from catastrophic organ failure. [As a thought experiment, imagine what would happen if politicians would propose that any group of patients, other than females of reproductive age, would only be permitted access to proper medical care if, and only if, their condition has deteriorated to the point of almost no return.]
And here’s a risk-management assessment addressing your point that these clauses don’t make that much of a difference:
[Abortion ban legislation with a health exception clause] requires physicians to choose between possibly committing a felony or subjecting a pregnant woman to a higher degree of medical risk than what would otherwise be clinically desirable.”
Since you think that there are lots of [physicians] that would do that (base medical care on their personal/political beliefs, rather than the standard of care), just imagine what all these unprofessional physicians will do when the choice is between committing a felony or committing malpractice.
Progressive Conservative,
I don’t think most liberals are ‘pro-abortion’ ….
Are you saying that there are some liberals who explicitly support passing forced-abortion legislation? That is news to me. (Do you have a source?)
My impression was that those (liberal or otherwise) who support allowing the government to prohibit female patients from making medical decisions don’t so much advocate forced-abortions as they trust that the state will only target pregnant patients who need, or elect, to terminate.
*[OK to link to sources?]
Comment by ema October 24, 2008 @ 11:30 pmHi Ema! Thanks for commenting – I’ll defend myself, I’m personally opposed to partial birth abortion, but I realize that puts me in a minority among my readership, and my ideological peers.
Comment by Ames October 24, 2008 @ 11:33 pmThank you for a very interesting post.
Comment by ema October 25, 2008 @ 1:49 pmThanks for commenting! I should add, though I think you can tell, I’m very pro-choice on almost all other issues…
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