HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Wednesday, March 1, 2006

Editorial on Partial Birth Abortion Case has an interesting editorial on the partial birth abortion case, Gonzales v . Carhart (05-380), recently granted cert. by the Supreme Court.  William Saletin, the author notes,

Here's a different way to think about the case. It isn't about whether you're for or against abortion. It's about how confident you are that an unwelcome medical scenario will never happen.

The ban has become so politically central to the abortion debate that it's easy to forget how medically marginal it is. At most, it would affect fewer than one in 250 U.S. abortions. Of these 2,000 to 5,000 unborn babies—if that's what you believe they are—it would save none. It doesn't ban abortions beyond a stage of pregnancy; it just regulates the methods by which they're done.

Despite this empty result—or maybe because of it—many pro-choice politicians are willing to accept the ban. If you can end a pregnancy safely by other means, it seems gratuitously revolting to partially extract the fetus during the procedure. But that's a big if. What pro-choicers demand, and pro-lifers reject, is an exception to allow this method in situations where it's ostensibly necessary to protect the woman's health. According to the National Right to Life Committee, "the vast majority of partial-birth abortions do not involve any acute medical circumstances." So, in theory, the dispute is confined to a fraction of a fraction of all abortions.

Because the justifying scenarios are exceptional, and because the rationales for the procedure are technical, the federal judge who heard testimony in this case issued an opinion short on generalizations and long on details. His opinion runs 474 pages. It spends 57 pages reviewing congressional testimony over a nine-year period and another 278 pages reviewing medical testimony at the trial. It discusses numerous health conditions that, according to doctors who testified, make partial-birth abortion possibly the safest procedure for the woman. It concludes, "The trial evidence establishes that a large and eminent body of medical opinion believes that partial-birth abortions provide women with significant health benefits in certain circumstances." Not all circumstances—just certain ones.

The appeals court opinion affirming this ruling takes similar care. It enumerates scenarios in which testimony and logic indicate that partial-birth abortion might be the safest procedure. It acknowledges contrary testimony but concludes, "If one thing is clear from the record in this case, it is that no consensus exists in the medical community." Quoting a six-year-old Supreme Court opinion, it warns that "the division of medical opinion about the matter at most means uncertainty, a factor that signals the presence of risk, not its absence."

The ban's authors in Congress, like its defenders in the Bush administration, show no such humility. The nine years of congressional testimony that took 57 pages to describe in the trial court's opinion are boiled down in the ban's text to five pages. Every inconvenient nuance, witness statement, or piece of evidence is obliterated. The word "never" appears 10 times. "Congress finds that partial-birth abortion is never medically indicated to preserve the health of the mother," says the law, offering no details. "These findings reflect the very informed judgment of the Congress that a partial-birth abortion is never necessary to preserve the health of a woman." Who needs information when you've got informed judgment? Who needs sometimes when you've got never?


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