Monday, April 30, 2007
Via the Joplin Globe/AP:
Prosecutors could charge someone with murder, manslaughter or battery for intentionally harming a fetus under a bill that won House approval Wednesday and went to Gov. Kathleen Sebelius....
The House vote was 97-27 and came three weeks after the Senate approved the measure. Sebelius is a strong abortion rights supporter but hasnt declared whether shell sign or veto the bill....
The bill says the definition of person for nine crimes includes an unborn child at any stage of development in the womb. Those crimes are capital, first-degree and second-degree murder; vehicular homicide; voluntary and involuntary manslaughter; battery and aggravated battery; and manslaughter while driving under the influence of drugs or alcohol.
For why "harm to pregnant women" laws are better than laws that define a fetus as a separate crime victim, see this post: Texas Court Affirms Life Sentence for Feticide.
Helena Silverstein (Department of Government and Law, Lafayette College) is the author of Girls on the Stand: How Courts Fail Pregnant Minors, which will be released tomorrow. Here is a summary:
The U.S. Supreme Court has decided that states may require parental involvement in the abortion decisions of pregnant minors as long as minors have the opportunity to petition for a "bypass" of parental involvement. To date, virtually all of the 34 states that mandate parental involvement have put judges in charge of the bypass process. Individual judges are thereby responsible for deciding whether or not the minor has a legitimate basis to seek an abortion absent parental participation.
In this revealing and disturbing book, Helena Silverstein presents a detailed picture of how the bypass process actually functions. Silverstein led a team of researchers who surveyed more than 200 courts designated to handle bypass cases in three states. Her research shows indisputably that laws are being routinely ignored and, when enforced, interpreted by judges in widely divergent ways. In fact, she finds audacious acts of judicial discretion, in which judges structure bypass proceedings in a shameless and calculated effort to communicate their religious and political views and to persuade minors to carry their pregnancies to term. Her investigations uncover judicial mandates that minors receive pro-life counseling from evangelical Christian ministries, as well as the practice of appointing attorneys to represent the interests of unborn children at bypass hearings.
Quote of the day (via a letter to the editor of the Boston Globe):
ELLEN GOODMAN ("Trumping women's rights," Op-ed, April 20) accuses politicians (mostly male) of playing God. May I remind her that it was the first woman playing God in a garden and deciding for herself what was good and what was evil that got us into the moral mess that we find ourselves in today. While her man stood mutely by, Eve blithely destroyed the lives of her future children. Perhaps the politicians are just now trying to right that wrong....
The Rev. GEORGE SZAL
The writer is a pastor at the Immaculate Conception Parish.
I think I'll just let that one speak for itself. Thanks to my sister for the tip.
Sunday, April 29, 2007
Clinic Bombings and Infanticide Rhetoric: "Partial-Truth Abortion" Is a Dangerous and Duplicitous Game
Via the Associated Press, Arrest Made in Bomb at Texas Clinic:
A 27-year-old man has been arrested in connection with a makeshift bomb that was found outside a clinic where abortions are performed, authorities said Friday....
The bomb was discovered Wednesday, and authorities had asked area abortion providers to be vigilant after a U.S. Supreme Court ruling last week that banned a type of late-term abortion.
The bomb was found in a bag in the parking lot of the Austin Women's Health Center. After an employee found the package, a bomb squad detonated the device. It contained an explosive powder and two pounds of nails, said David Carter, assistant police chief. Had the bomb detonated, it could have injured people 100 feet away, police said.
What did "pro-life" groups have to say in response? According to LifeNews.com:
Texas Alliance for Life director Joe Pojman said that pro-life advocates are peaceful people and that any political movement has individual vigilantes that act on their own wrongheaded ideas. "We get painted with the same brush as someone who is a criminal. We only condone peaceful legal activities," he said.
Really. If you knew that infants and children were being slaughtered at a hospital, would you call someone who used force to try to stop it "wrongheaded" and "criminal?" When "pro-life" advocates and the Supreme Court invoke the language of infanticide in addressing abortion, "pro-life" activists can hardly be surprised that some are moved to violence by their rhetoric.
In the context of the federal abortion ban, the infanticide rhetoric begins with the made-up name, "partial-birth abortion," the inspiration of Douglas Johnson of National Right to Life Committee and Florida Republican Congressman Charles Canady. The term intentionally, but falsely, implies that babies in the process of being born are instead brutally killed before they fully emerge. (For more on why this impression is false, see the note below.) Anyone who buys Douglas Johnson's claims that "partial-birth abortion" is somehow a neutral, legal "term of art" ought to read the NARAL quotesheet, "Partial-Birth Abortions": Anti-Choice Leaders Reveal True Intentions, which exposes the calculated nature of the campaign. For example, Randall Terry, the founder of Operation Rescue, conceded in 2003:
"(The) partial-birth abortion ban is a political scam but a public relations goldmine...This bill, if it becomes law, may not save one child's life...The major benefit of this bill is the debate that surrounds it."
For a fuller account of the history of the carefully orchestrated "partial-birth abortion" campaign, see Gambling with Abortion: Why Both Sides Think They Have Everything To Lose, by Cynthia Gorney (Harper’s, November 2004).
The recent Supreme Court decision upholding the federal abortion ban is steeped in infanticide rhetoric. Justice Kennedy's calculated use of language in Gonzales v. Carhart conflates abortion and infantide:
A description of the prohibited abortion procedure demonstrates the rationale for the congressional enactment. The Act proscribes a method of abortion in which a fetus is killed just inches before completion of the birth process.... The Act expresses respect for the dignity of human life.
Congress determined that the abortion methods it proscribed had a "disturbing similarity to the killing of a newborn infant" ... and thus it was concerned with "draw[ing] a bright line that clearly distinguishes abortion and infanticide." ...
Respect for human life finds an ultimate expression in the bond of love the mother has for her child.... It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast developing brain of her unborn child, a child assuming the human form.
But this infanticide rhetoric is not only factually misleading but utterly disingenuous. In this decision, the Court purports to leave intact the right to abortion, while banning only one method. Unless and until the Court is truly ready to treat abortion as infanticide, it is playing a cold-hearted and dangerous game in exploiting this language. It has left the public with an indelible but false impression that has shaped the debate over so-called "partial-birth abortion" bans and that only adds fuel to the fire for those who would commit violence to stop women from obtaining abortions.
Note on the intact D&E procedure: The reason, in fact, that the fetal skull is reduced before removal in the intact D&E procedure (a method that is not limited to the late stages of pregnancy) is that the woman is not ready to give birth. Her cervix cannot yet reach the necessary dilation to permit the fetal head to pass through. (Any woman who has experienced vaginal childbirth and -- even at full term -- waited through hours of painful contractions for her cervix to dilate sufficiently will know exactly what I am talking about.) Removing the fetus intact in this manner results in fewer insertions of sharp instruments into the uterus and is therefore considered by many physicians to carry safety advantages for the woman.
The San Diego Union-Tribune reports:
Abortion foes vowed Saturday to print posters bearing the names of Mexico City lawmakers who voted to legalize the procedure while uncertainty lingered over whether doctors at city-run hospitals could refuse to perform them.
Mayor Marcelo Ebrard said that doctors at city-run hospitals could not refuse to perform the procedure because of moral objections, apparently contradicting earlier statements by the city's health secretary....
The law, which was approved on Tuesday, applies only to city-run hospitals in Mexico City and would not require doctors in federal hospitals or private clinics to perform abortions. It opens the way, however, for private clinics to perform them.
The State (South Carolina) reports:
South Carolina is one of the most difficult places in the United States to get an abortion, abortion rights advocates say.
Over the past two decades, a host of legislative restrictions — mandatory waiting periods, requiring “informed consent” information and regulations on abortion clinics — have jelled to limit access to abortions.
Saturday, April 28, 2007
ACLU, Advocates for Youth, and SIECUS Say Government Funded Abstinence-Only-Until-Marriage Materials Violate Federal Law
Groups Call on Government to Remedy Violations and Ensure Materials Contain Medically Accurate Information about Condom Effectiveness
WASHINGTON – The American Civil Liberties Union, Advocates for Youth, and Sexuality Information and Education Council of the United States (SIECUS) today sent a letter and supporting materials to the Secretary of Health and Human Services (HHS) identifying several federally funded abstinence-only-until-marriage programs that include medically inaccurate information in violation of federal law. The groups called on HHS to immediately remedy the violations or face a legal challenge from the ACLU.
Read the full press release from the ACLU Reproductive Freedom Project.
Meanwhile, a New York Times editorial, The Abstinence-Only Delusion, urges that Congress "drop the abstinence-only program as a waste of money or broaden it to include safe-sex instruction," based on recent research demonstrating the failure of abstinence-only curricula to delay sexual activity among teens.
Friday, April 27, 2007
In his op-ed piece, Supreme Confusion, in yesterday's New York Times, Charles Fried criticizes Justice Kennedy's opinion in Gonzales v. Carhart, although the outcome could not have been surprising to a man who supported the nominations of Chief Justice Roberts and Justice Alito. Among Fried's concerns about the Court's reasoning:
The decision is disturbing because the court has on numerous occasions refused to allow Congress to overturn constitutional law by bogus fact finding, notably in decisions invalidating the Violence Against Women Act (which Justice Kennedy joined) and the Religious Freedom Restoration Act (which Justice Kennedy wrote).
It’s disturbing because Justice Kennedy fails to come to grips with his own jurisprudence, going so far as to say that because Congress was acting under its power to regulate interstate commerce, it needed only a rational basis to justify its decision. Where a fundamental right is involved, such an explanation is evidently wrong.
It’s also disturbing because Justice Kennedy was not quite willing to embrace his own conclusion. He suggested that perhaps as applied in a particular case in which there was an increased health risk the ban might be unconstitutional after all. What can that mean? The very complaint here was that the ban was unconstitutional because it applies in just such situations. Does the court contemplate a surgeon pausing in the midst of an operation in which he determines the banned procedure might be less risky, and seeking a court order?
I wholeheartedly agree with the third point. On the first, though, it's odd that Fried would compare Congress's extensive and thorough factfinding on the Violence Against Women Act with Congress's politically motivated conclusions that the intact D&E method of abortion is never medically necessary. As the plaintiffs in Gonzales v. Carhart and Planned Parenthood v. Carhart argued, those conclusions did not reasonably reflect the evidence in the congressional record. Moreover, the Court purported not to "place dispositive weight" on those findings, in fact conceding that some of the findings were incorrect. The opinion thus is even more dishonest than Fried suggests. It purports not to defer to the congressional findings, and yet it also ignores the factual findings of the trial courts without ever concluding that these are clearly erroneous. Apparently, Justice Kennedy simply followed his personal proclivities.
I also don't see the second point reflected in the opinion. Although the Court does require only a "rational basis" for the legislation, it does not purport to do so "because Congress was acting under its power to regulate interstate commerce." Indeed, as Justice Thomas's concurring opinion makes clear, the Court did not address whether the federal ban was a proper exercise of Congress's Commerce Clause power. In the passage to which Fried refers (on page 28 of the opinion), the Court is referring to governmental power -- whether state or federal -- to regulate abortion without running afoul of the constitutional right to privacy. What is alarming about that passage is how close it comes to bringing abortion restrictions down to rational basis review, the lowest level of constitutional scrutiny. The Court still purports to employ the "undue burden" standard, but in the context of this opinion it is not clear that this means anything short of a total ban on abortions. See more at this post.
Russell Korobkin (UCLA) has posted his article, Embryonic Histrionics: A Critical Evaluation of the Bush Stem Cell Funding Policy and the Congressional Alternative, Jurimetrics Journal, Vol. 47, No. 1, 2006, on SSRN. Here is the abstract:
For the past decade, the debate over federal funding of human embryonic stem cell (hESC) research has dominated the national discussion of biomedical science policy. In 2001, President Bush announced the federal government would place significant limitations on funding of hESC research. In 2006, Congress passed legislation to overrule this decision but failed to override a presidential veto. This article goes beyond the headlines to critique the assumptions and the internal logic of the President's position and Congress' failed alternative, finding that neither constitutes a logically coherent public policy. It also evaluates the impact that the Bush policy has had on scientific progress in the field.
Judy Peres of the Chicago Tribune writes, in States see new fights on abortion:
Buoyed by last week's victory in the U.S. Supreme Court, abortion opponents in various states are dusting off old laws and drafting new ones to curb access to the nation's most controversial medical procedure.
In the past week, North Dakota's legislature passed a law that would ban virtually all abortions, the Missouri House voted to tighten regulation of abortion clinics and two federal appeals courts were asked to lift injunctions blocking enforcement of state abortion bans.
At the same time, state and federal abortion-rights advocates are stepping up their efforts as well and announced plans to seek laws guaranteeing women the right to terminate a pregnancy.
Given the Court's reasoning in upholding the federal ban, and Justice Kennedy's disturbing rhetoric, we can expect to see a lot more than laws addressing the intact D&E procedure. (I assume that is what Peres means by "the nation's most controversial medical procedure," although who knows, given how the bans' proponents have stubbornly refused to use medical terminology in legislation or in public debates about the bans). The article describes some of the measures states are likely to pursue in the aftermath of Gonzales v. Carhart.
Based on what has already been introduced in state legislatures in recent years, we may well see: more intrusive information requirements, including that women be shown an ultrasound of the fetus or be required to hear the heartbeat, or that women be given scientifically unproven or disproven information such as that abortion causes breast cancer or that the fetus can feel pain; longer waiting periods; bans on other types of abortion procedures; and abortion restrictions of all kinds that lack health exceptions.
For more on why the decision invites these measures, see these posts analyzing the opinion:
Via the Kaiser Daily Women's Health Policy Report, Giuliani Answers Questions About Consistency of Abortion Rights Stance; Biden Says Court Ruling on Abortion Ban 'Contains Troubling Reasoning':
Former New York City Mayor Rudolph Giuliani, who is running for the Republican presidential nomination, on Tuesday at a campaign stop at New England College in Henniker, N.H., answered questions from voters about his position on so-called "partial-birth" abortion, the Long Island Newsday reports (Gordon, Long Island Newsday, 4/24). Giuliani told several hundred people attending the event that he does not think there is an "inconsistency" between his support of abortion rights and his support of the U.S. Supreme Court's decision last week to uphold a federal law (S 3) banning partial-birth abortion, the AP/MSNBC reports.
Mystifyingly, Giuliani claims that he supported President Clinton's vetoes of a similar federal abortion ban because he did not believe the earlier ban contained an exception to protect pregnant women's lives. However, both that ban and the one recently upheld contain limited life exceptions, while neither include a health exception. For more on Giuliani's abortion views, see: Ann Althouse on Giuliani's and Romney's Abortion Views; Michael Dorf on Giuliani's Abortion Views.
Meanwhile, Senator Biden issued a statement criticizing the Court's ruling, even though he voted for the ban:
In related news, Sen. Joe Biden (D-Del.), who is running for the Democratic presidential nomination, in recent statement released to the Wilmington News Journal said that the Supreme Court's partial-birth abortion ruling "contains troubling reasoning that could lay a powerful foundation to dismantle basic legal precedent." Biden is the only Democratic presidential candidate to have voted for the ban in the Senate in 2003.
New England Journal of Medicine Publishes Perspective Pieces Responding to Supreme Court Ruling Federal Abortion Ban Constitutional
The New England Journal of Medicine on Thursday published three perspective pieces responding to the Supreme Court's 5-4 ruling on Wednesday to reinstate a federal law banning so-called "partial-birth" abortion, overturning the rulings of three appeals courts.
The Kaiser Report includes summaries of the three opinion pieces, all critical of the ruling, by R. Alta Charo ("The Partial Death of Abortion Rights"), Jeffrey Drazen ("Government in Medicine"), and Michael Greene ("The Intimidation of American Physicians — Banning Partial-Birth Abortion"). On that last title, I would like to note that it is counterproductive, if one aims to criticize Congress's interference with medical practice, to adopt without qualification the politicized terminology of the ban's proponents -- highly misleading, nonmedical terminology that has nevertheless managed to shape the views of public and the Supreme Court. See this related post.
Thursday, April 26, 2007
The Washington Post (4/25) reports:
Texas lawmakers rejected Gov. Rick Perry's anti-cancer vaccine order Wednesday, sending him a bill that blocks state officials from requiring the shots for at least four years.
Perry has said he is disappointed but has not indicated whether he will veto the bill. He has 10 days to sign or veto it, or the proposal will become law without his signature.
Lawmakers can override a veto with a two-thirds vote of both chambers. The legislation passed by well over that margin in both chambers.
Wednesday, April 25, 2007
The North Dakota Legislative Assembly [official website] passed a bill [PDF text] Monday prohibiting abortion [JURIST news archive] in the state if the US Supreme Court [official website] ever declares that such a move would be constitutional. The measure, which Governor John Hoeven [official website] is expected to sign, passed the state House 68-24 and the Senate 29-16. In the event that the US Supreme Court overturns the 1973 Roe v. Wade [LII backgrounder; opinion] decision, the bill would subject anyone performing an abortion to a prison sentence of up to 5 years, a $5,000 fine, or possibly both. An exception would be made in cases of rape, incest, or where the life of the mother was in danger.
North Dakota has become the second state to pass this type of abortion law; Mississippi approved a similar measure [FMF report] last month. Senate Majority Leader Bob Stenehjem [official website] denied that the North Dakota bill was influenced by last week's Supreme Court decision upholding a federal 'partial birth' abortion ban [JURIST report].
Via the Feminist Law Professors Blog.
Danny Hakim reports for today's New York Times:
Mr. Spitzer’s bill, the Reproductive Health and Privacy Protection Act, would update current law, which, for example, does not include a provision allowing for abortions late in pregnancies to protect a woman’s health. New York state laws on the books also treat abortion as a homicide, but with broad exceptions that allow the procedure in many cases.
Mr. Spitzer’s proposal would remove abortion from criminal statutes and make it a matter of professional and medical discretion. It would also repeal an old statute “that criminalizes, among other things, providing nonprescription contraception to minors,” according to the governor’s office.
I wish I felt as optimistic as Cass Sunstein apparently does about the possibility of an equal protection based argument for the right to abortion, as articulated in Justice Ginsburg's dissent. In the L.A. Times (4/20), Sunstein writes:
IN THE LONG RUN, the most important part of the Supreme Court's ruling on "partial-birth" abortions may not be Justice Anthony M. Kennedy's opinion for the majority. It might well be Justice Ruth Bader Ginsburg's dissent, which attempts, for the first time in the court's history, to justify the right to abortion squarely in terms of women's equality rather than privacy.
...Ginsburg has now offered the most powerful understanding of the foundations of the right to choose — and it is important to remember that today's dissenting opinion often becomes tomorrow's majority. The equality argument has the support of four members of the court (Ginsburg and justices John Paul Stevens, David H. Souter and Stephen G. Breyer). We should not be terribly surprised if, in the fullness of time, Ginsburg's view attracts a decisive fifth.
I'm also interested in this part of Sunstein's comment:
Despite its advantages, the sex equality argument will not be convincing to committed opponents of the abortion right. If you believe that fetuses count as human beings, then you're going to believe the state has a right to protect them, even if the resulting laws undermine "a woman's autonomy to determine her life's course."
This passage buys into the very ambiguity that "committed opponents of the abortion right" typically exploit: what exactly is a "human being"? Not a "person," apparently, if by this we mean a constitutional person endowed with the same rights as any other born person. Upholding the ban here is not at all consistent with treating the fetus as a person since, as the majority opinion itself claims, the decision will not save any fetuses. If "human being" means something less than a full person, then it's not clear why a state interest in this non-person should necessarily trump "a woman's autonomy to determine her life's course."
Tuesday, April 24, 2007
Here we go... the aftermath of Gonzales v. Carhart has begun. In Va. Law to Be Reconsidered In Wake of High Court Ruling, Jerry Markon reports for the Washington Post:
The Supreme Court decision upholding the federal ban on a controversial abortion procedure started playing out in Virginia yesterday, as the justices ordered a Richmond-based appellate court to reconsider the state law it struck down barring the procedure.
In 2005, the U.S. Court of Appeals for the 4th Circuit overturned Virginia's ban on what opponents call "partial birth infanticide." A three-judge panel, citing Supreme Court precedent, found the measure unconstitutional because it lacks an exception to safeguard a woman's health.
But the Supreme Court reversed course last week, upholding the Partial Birth Abortion Ban Act passed by Congress in 2003. Yesterday, the high court followed up by vacating the 4th Circuit decision and sending the case back to Richmond for review, "in light of" the ruling last week. A similar appellate court decision striking down Missouri's ban on the procedure also will be reconsidered.
A new study confirms earlier findings that abortion does not cause breast cancer. Maggie Fox reports for Reuters:
Abortions and miscarriages do not raise the risk of breast cancer, despite claims by some groups and some studies that suggest they do, researchers said yesterday. A study of more than 100,000 US nurses found that those who had an abortion or miscarriage were no more likely to have breast cancer than any other woman in the study.
The findings fit with a 2003 report from an international expert panel put together by the US National Cancer Institute.
"If you look at the high-quality evidence, it does not support an association between induced abortions and breast cancer," said Karin Michels of Brigham and Women's Hospital and Harvard Medical School in Boston. But her team set out to create the most reliable type of research that is possible -- a prospective study, starting with women before they ever had cancer, and following them for years.
Carla Johnson of the Associated Press reports:
However, this latest analysis isn't likely to convince all those opposed to abortion. Three states — Texas, Minnesota and Mississippi — require doctors to warn women seeking abortions of the purported link to breast cancer "when medically accurate," letting doctors make that determination based on current scientific evidence.