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Wednesday, April 18, 2007

It’s the Beginning of the End…

posted by on April 18 at 7:46 AM

of abortion rights in the United States.

The Supreme Court upheld the nationwide ban on a controversial abortion procedure Wednesday, handing abortion opponents the long-awaited victory they expected from a more conservative bench.

The 5-4 ruling said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman’s constitutional right to an abortion.

The opponents of the act “have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases,” Justice Anthony Kennedy wrote in the majority opinion. The decision pitted the court’s conservatives against its liberals, with President Bush’s two appointees, Chief Justice John Roberts and Justice Samuel Alito, siding with the majority.

Justice Anthony Kennedy wrote the majority opinion—which is going to make some heads explode on the radical right and the liberal left. Religious conservatives loathe Kennedy for authoring the courts 1996 decision invalidating a Colorado constitutional amendment that barred gays and lesbians from any anti-discrimination protections; he also wrote the majority decision in 2003 overturning all anti-sodomy laws in the United States. Religious conservatives were talking about impeaching Kennedy—a Reagan appointee—over those decisions. After today’s decision all is no doubt forgiven.

One of the liberals “pitted against” the conservative majority on the court—John Paul Stevens—turns 87 on April 20th. George W. Bush has 642 days left in office. Pray for Stevens. Another Bush appointment to the US Supreme Court would be a disaster for women, gays, minorities, prisoners, “enemy combatants,” and the environment.

In addition to praying for Stevens, anyone that cares about the rights of women, gays, minorities, etc., needs to register to vote, get behind a Democratic candidate, write checks, support the Democratic nominee whoever that person is, vote next November and make sure all your friends do the same. No pouting if your preferred candidate doesn’t get the nomination. And no squandering votes on third-party candidates.

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The beginning of the end would be somewhere in the early 1990s if not before, with the gradual expulsion (through legal obstacles, funding cuts, and terrorism) of almost all abortion services from rural American into what you've come to call the urban archipelago, followed by its relegation to Kafkaesque levels of red tape and subversion in cities throughout the South. Nothing's inevitable, but this movement has been gaining momentum for some time. The Court would be stupid to overturn Roe entirely. It will probably just find ways to further restrict abortion to places like San Francisco, NY, Chicago and Seattle, and bank on urban liberals to keep quietly ceding the rest of the country over to the fascists.

Posted by wf | April 18, 2007 8:17 AM

Oh Dan, way to make me cry. I had kind of blocked out how old Stevens was. Someone over at Feministing asked how Sandra Day O'Connor's husband was doing. What it must feel like to be Ginsburg today. Jesus.

Posted by brie | April 18, 2007 8:21 AM

Does that law include an exception for when the woman's life is in danger?

Posted by Jessica | April 18, 2007 8:31 AM

Jessica, unfortunately not and thats the big problem. The is little opposition to a law that includes it. These procedures are rarely if ever elective. They are most often used when you have severe fetal abnormalities. One such problem ,were the fetal brain is basically just a liquid can delay the onset of labor. The result is that absent an abortion and a dilation and extration on at that (partial birth) a pregnancy can last 10-12 months all the while everyone including the mother knows that the fetus is dead.

But hey this is quite rare so now great impact on constitutional rights right

Posted by Giffy | April 18, 2007 8:41 AM

This is just awful. I feel so bad for the women who needlessly bleed out because they can't have a dead fetus removed. Nothing like weeks of horrible pain and massive bleeding, with no treatment because its not "allowed". What makes me even more angry about this is that anti-choice people seem to think that there are just DROVES of women lining up to get this done, because they hate babies. They have no idea how agonizing a decision is to have an abortion, nor do they know the pain involved (both physical and mental). Its like they can't even comprehend what it takes to have to make that choice.

I have a friend that had to have an abortion because the baby was killing her. The baby was sick and dying, and it was draining her so badly that she had to make a choice: have an abortion, or possible die. Even knowing she would possibly die, it was still hard for her to have the procedure.

Its good that the supreme court is making that decision for us. Makes it that much easier I suppose. I mean, what do doctors know? Apparently not as much as judges??????


Posted by Monique | April 18, 2007 8:59 AM

WF is right that the beginning of the end was almost 20 years ago. But regardless, Dan is absolutely right that the health of all four "liberals" on the Court should be one of this country's greatest concerns.

Stevens, though 87, seems in good health. Ginsburg, however, seems not to be. The retirement (death or, frankly, incapacitation) of either of these Justices would be a disaster for the country for the next 40 years.

Not only *MUST* we win the next election, we need to ask all of our candidates how much energy and political capital they will devote to judicial nominations. Clinton was notorious for devoting very little energy or capital to the issue -- and although he was President for 8 years, few liberals were appointed during his terms.

Posted by Jonathan | April 18, 2007 9:02 AM

Second the notion of not pouting if your preferred candidate doesn't make it. None of these folks are going to get a penny from me until after the convention, when I will happily support Clinton, Obama, Edwards, Richardson, or a stuffed bear against whatever the Rs put up.

But be a little more sanguine about abortion rights. This isn't the end or the beginning of anything. Abortion rights are quite popular in all the places where they are available, and they are already forbidden in actual fact in most of the places where these creeps hold power, simply because there aren't any abortion providers there. Abortion rights are not at risk in WA and will never be.

If Bush gets another nominee, the fight over him or her is going to be a doozy. Pray for Stevens, but pray for more Harriet Myerses as well. I think he should pick Al Gonzales.

Posted by Fnarf | April 18, 2007 9:15 AM

Partial birth abortion is an incredibly gruesome procedure where the head of the baby is crushed as it is being delivered. I've never heard of a case where it was medically necessary to save the life of the mother. I'm sorry, but I just can't get past that.

Posted by raindrop | April 18, 2007 9:29 AM

The 2008 elections are critical.

If Dems maintain or extend their majority, a Bush nominee won't have a chance of getting through the judiciary committee, let alone a full vote.

Posted by Sean | April 18, 2007 9:40 AM

Oops, since Bush won't be nominating anyone after 2008, my post is utter nonsense. Sorry about that.

Posted by Sean | April 18, 2007 9:43 AM

Some folks assert that a Roe overturning would be a quick route to huge Democratic gains in the next election, and that Republican strategists have intentionally avoided a serious Roe fight for this reason.

I hope there's some truth in that.

Posted by tsm | April 18, 2007 9:46 AM

Raindrop @8: You've never heard of a case where it was medically necessary, yet just a few comments before Monique told of her friend who was in that situation. Do you have blinders on? Or, in the case that Giffy presents, where the baby doesn't have a brain, has no chance of survival, and is basically holding the mother prisoner until it is delivered--you can't get past that? No brain=no sentience=no soul, which makes killing it the humane thing to do, like we'd do with an injured animal. Few people are asking that healthy pregnant women who just change their minds be able to rip a viable baby out of their womb; reasonable people just want a clause allowing for the few - but real - times that it is the necessary and responsible thing to do.

Posted by Aislinn | April 18, 2007 10:00 AM

@raindrop, your comment is so myopic, I can't get past it.

Posted by Soupytwist | April 18, 2007 10:01 AM

Did you really just write "Pray for Stevens"?
I am surprised you're into that hocus-pocus religious shit too.

Posted by wtf | April 18, 2007 10:08 AM

hell yeah savage is into that hocus-pocus religious shit too. that's the whole drama of the stranger. the confrontation of hocus-pocus religious shit and real life.

Posted by josh | April 18, 2007 10:24 AM

Is there any way that individual states can legalize the procedure? I know that it's a federal ban, but what business do the Feds have in telling states what they can and can't do in this instance?

Posted by keshmeshi | April 18, 2007 10:28 AM


My understanding is there isn't an alternative to intact D&E (the real name for "partial birth abortion") in certain cases. Induction and abdominal surgery are the only other options, and these may endanger the life of the mother in certain situations. Before 23-24 weeks, which is viability, labor can be induced, the fetus can be delivered and will die anyway. After this time, I believe they can inject a potassium solution into the fetus, which results in the fetus' death, and then induce labor to deliver it. Personally, these methods would be preferable to me. But what if going through labor (or a C-section) puts the mother at risk for a stroke or worse? They need to keep intact D&E an option for these cases where the health and life of the mother are endangered.

Posted by Okay | April 18, 2007 10:31 AM

Wrong again, Dan. This is the beginning of the end for the fetus fascists.

Posted by ivan | April 18, 2007 10:52 AM

Even if it happened 1 time each year or less, where it was medically necessary, there should be the ability to have it done. Just because its rare, doesn't change that its medically the best choice.

Posted by Monique | April 18, 2007 10:57 AM

The decision, while sad policy, is not greatly in conflict with Roe v. Wade, which held that the government does have some interest in the life of a fetus in the second and third trimesters.

Posted by Algernon | April 18, 2007 11:40 AM

Thank you Okay, and Monique, for your responses. I'm pro-choice but I never really studied D&E. At first thought, it's absolutly horrific. But now I disgree with the Supremes decision.

Posted by raindrop | April 18, 2007 11:48 AM

i've started donating money each month to planned parenthood. anyone have any other ideas of what we can do? (other than vote!)

Posted by arduous | April 18, 2007 11:54 AM

Justice Ginsburg penned a moving dissent from today's Supreme Court opinion upholding the Federal Abortion Ban.

Some highlights:

"Today's decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health.

Posted by Orson | April 18, 2007 11:56 AM

Activist Judges playing Doctor, it will only get worse.

Posted by Sargon Bighorn | April 18, 2007 12:01 PM

"Activist Judges playing Doctor"

Sorry, I know what you really meant, but just seeing that phrase brought up some reaaaaallly creeeeepy images.

I think I need to take a shower now...

Posted by COMTE | April 18, 2007 12:28 PM

Re: donating to planned parenthood - I would feel a lot better about it if they weren't one of the most annoying non-profits out there. With all the money and resources they spend on pestering phone calls and mailers, how is there any left over for their actual mission? Why isn't there a way to donate with a "don't send me crap or call me at dinner time" clause?

Posted by Levislade | April 18, 2007 12:30 PM

"Percentage of Planned Parenthood annual expenses ($819,000,000) spent on client services, education, and research: 83"

Levislade, if you're concerned about PP's fundraising tactics (which are quite typical of almost all nonprofits), I suggest setting up a monthly payment and asking if you can be removed from their mailing list since you will be contributing regularly.

Posted by exelizabeth | April 18, 2007 12:42 PM

@6 Jonathan:

Bashing Bill Clinton's record on this cannot go unchallenged: "[Bill] Clinton was notorious for devoting very little energy or capital to the issue -- and although he was President for 8 years, few liberals were appointed during his terms."

This was the kind of crap that Nader-supporters threw around in 2000 which is what got George Bush elected in the 1st place. Every single one of B. Clinton's Supreme nominees voted is firmly pro-choice. As I'm sure would be the case of H.Clinton or Obama or Edwards and as would definitely NOT be the case for Romney or McCain - Guiliani's harder to peg - depends on whether he's in drag that day or not.

So however less than ideally perfectly liberal Bill Clinton's appointees were, or any of the top 3 Dem candidates are, please no bashing. We can't afford to take our eye off the prize.

Posted by Barak Gaster | April 18, 2007 1:01 PM

Er, raindrop might indeed be blinkered and ignorant, but raindrop's opinion is also, overwhelmingly, that of the American people.

Polls consistently show that around 70% of Americans think "partial-birth" abortion should be illegal.

They also show that around 60% of us think abortion should be legal in most cases. Welcome to the real world, where people don't all fall in line behind one ideologically pure position or another.

As to the argument of medical necessity, I'm curious as to which of the life-threatening conditions described here in the comments could not be addressed with early delivery via C-section. C-sections were extreme procedures 20 years ago, yes, but today they're routine.

It is of course perfectly clear that there are problems in late pregnancy that can threaten the life of the mother. But the case has yet to be made (here in the comments, at least) that Intact D&E, as opposed to alternative procedures, is absolutely necessary in any such case.

For the record, I'm opposed to the ban. The procedure seems icky to me, but C-sections and IVF and catheters all seem icky to me, too, and I don't feel ickiness is a good basis for medical regulation.

The court's decision does open some doors, but the doors it opens lead not to a national ban on abortion, which will never, ever have any chance of passing, but rather to handing authority over to the states.

I do favor national legal abortion, but I'm in that weird camp that says it would be better if it were made so by an act of congress rather than a supreme court decision.

Posted by robotslave | April 18, 2007 1:26 PM

every time i read one of these disheartening stories, i want to scream out loud, THANK YOU RALPH NADER!!!
to all those captious voters who voted for him, smugly dismissing gore as no better that w, i have one comment.


Posted by jim f. | April 18, 2007 2:53 PM


It is true, the abortion could be carried out by injecting the potassium solution and then removing the fetus by Ceasarean. But, C-sections are still major abdominal surgery. I could see why there might be some instances where the mother was too medically fragile to undergo a Ceasarean and was in danger of even dying from the procedure.

Posted by Okay | April 18, 2007 3:31 PM

@28. I don't think it is bashing to state plainly that Clinton expended little energy getting liberals appointed to the bench. It's true.

You could say it was because Clinton wasn't liberal. You could also say that he was saving his powder for other political fights. You could say it was because he was stymied by the Republican Senate (particularly Orrin Hatch as head of Judiciary).

It doesn't really matter why. It just matters that it was.

And the result is that the last big group of solid liberals appointments to the federal judiciary was in 1976 to 1980 under Carter. That's THIRTY years ago.

And most of those people are getting really old. It's not that they aren't incredibly smart and dedicated. It's not that they aren't fantastic judges. It;s not that they aren't head and shoulders above many of the lackluster Reagan appointees and the legally extremist and bizarre GW Bush appointees.

It's that a lot of those Carter appointees have retired, cut back their dockets, or died.

So I think it is more than fair to point this out and ask people to pay attention to the issue when we elect the next President.

Posted by Jonathan | April 18, 2007 4:03 PM

@28 Barak:

And by the way: It is simnply absurd to say that my analysis of Clinton's weakness on liberal judicial appointments is like the Naderite position that got GWB elected.

First off, Clinton is not running. GWB's record, not Clinton's, will be at issue in 2008.

Second, I stand by my position that Clinton did not put a lot of liberals on the bench -- even the SCOTUS. Probably the most liberal members of the SCOTUS are Stevens (NIXON appointee) and Souter (BUSH I appointee). Ginsburg and Breyer tend to be somewhat technocratic judicial thinkers and cannot be said to be to the left of Souter or Stevens. In any case, Judicial "liberalism" is not synonmous with voting to uphold Roe. coming out that way is pretty "moderate" I'd have to say.

So basically the best you can do with your argument in defense of the liberalism of Clinton's justices is that Clinton's folks are pretty much politically aligned with the Republicans on the Court appointed by Nixon and Bush I.

Not so "liberal" after all.

Posted by Jonathan | April 18, 2007 4:17 PM

Oops. Stevens was appointed by FORD, not NIXON.

Posted by Jonathan | April 18, 2007 4:18 PM

I personally am against the ban, however, I should point out that I'm even more against people who don't have their facts straight. The law as enacted does include a provision for the life of the mother, and also includes (via the legal definition of a "partial birth abortion") that it does not apply to miscarriages. The following is taken directly from the legal code, Title 18 (emphasis is my own):

"1531. Partial-birth abortions prohibited

1531. Partial-birth abortions prohibited

(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the date of enactment of this chapter.

(b) As used in this section --

(1) the term 'partial-birth abortion' means an abortion in which --

(A) the person performing the abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother for the purpose of performing an overt act that theperson knows will kill the partially delivered living fetus; and ..."

Posted by Ross | April 19, 2007 10:36 AM

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