More on partial-birth abortion

Stubborn Facts has a pair of addendums to its excellent coverage of the Carhart ruling (for my own previous post, go here.)

Simon Dodd provides a seven-page analysis of the ruling. It echoes bits of SF's other coverage, particularly the important distinction between an "as applied" and "facial" challenge. The Carhart case was a facial challenge, and that is one of the hardest to prove. So to that extent, the ruling is narrow indeed. All the Supreme Court said, in essence, is that the law isn't unconstitutional in all cases but could well be unconstitutional in some. Indeed, by explicitly leaving the door open for "as applied" challenges, they seemed to indicate that such challenges might well succeed.

Further the plaintiffs never raised the question of whether Congress had the power to pass the law in the first place, which means the Court didn't address that.

On the other hand, he argues, it does undermine the long-held necessity of including a "mother's health" exception to abortion bans, by the simple expedient of Congress declaring that the procedure in question is "never medically necessary." As long as medical opinion is legitimately in dispute on that, no exception is needed: As far as the courts are concerned, Congress has the right to draw a clear, bright line where none exists in reality.

In a separate post, Dodd notes the absence of any reference to foreign law, and surmises it may have something to do with the inconvenient nature of that law when it comes to abortion.

abortion, politics, midtopia

Supreme Court backs partial-birth abortion ban

I wasn't entirely expecting this.

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.

I gave my thoughts on this case months ago, when the Supremes first accepted it for review, and it hasn't changed any since then. The procedure is exceedingly rare, and there are at least some cases where it is medically justified. So the question for me -- and the Court, apparently -- is whether there are alternatives to partial-birth abortion that are equally effective and safe. If so, then banning a specific, gruesome procedure is no problem. If not, the ban would effectively prevent women in certain situations from obtaining a medically necessary abortion.

The Court decided there were sufficient alternatives. Notably, the government suggested that if the fetus were killed first -- by lethal injection to stop the heart, say -- it could then be legally aborted.

This may be true, but then one may ask what is gained by banning PBAs. It will ban one particularly gruesome procedure, yes. And it marks a legal landmark of sorts -- the first upheld restriction on a particular kind of abortion. As such, one might view it as the first step toward a wider ban.

But in the end, it doesn't appear that this ruling will prevent any abortions at all -- doctors will simply use alternative methods. And the Court explicitly left open the door to lawsuits by women harmed by the ban -- though that after-the-fact form of redress isn't going to help anyone in their seventh month of pregnancy. Someone is going to have to actually suffer some harm before the ban can be challenged.

What's interesting is how the Court managed to ignore precedent to reach its ruling, specifically the Stenberg v. Carhart ruling in 2000, in which a nearly identical ban was struck down by the Court. While the Court explained that it did not in fact ignore Stenberg -- that it's ruling is merely a narrow procedural one -- it's still hard to see how there are any substantive differences between the law then and the law now. The only real difference, it would seem, is the makeup of the court: specifically, the departure of Sandra Day O'Connor and the arrival of Samuel Alito.

That's how it has always been, of course: what is constitutional depends heavily on the biographies of the Justices. And it's not even necessarily a bad thing, for that is one way that law evolves. Still, this is a stark reminder of the essentially political nature of the Court.

Ruth Bader Ginsburg wrote a stinging dissent, read aloud from the bench. Read it and the other opinions here (pdf).

And for a truly excellent, in-depth discussion of the case by a bunch of lawyers, head on over to Stubborn Facts. They do a much better job of it then I could ever hope to.

abortion, politics, midtopia

Contraception: The new abortion

Researchers using federal data have found two interesting trends that chart the relationship between abortion and contraceptives.

Between 1994 and 2001:

1. The rate of unplanned pregnancies rose by 30 percent among poor women. The abortion rate also rose.

2. The rate of unplanned pregnancies fell 20 percent among affluent women. The abortion rate also fell.

Asked what was driving the trends, the authors noted that some state and federal reproductive health programs have been cut or made more restrictive in recent years. State and federal programs have increasingly focused on abstinence rather than contraception, and some analysts have argued that the shift is leading to less use of contraceptives and more unintended pregnancies.

(snip)

The authors said the growing disparities between richer and poorer women appeared to be the result of greater contraceptive use by the more affluent. The health statistics center, which is part of the Centers for Disease Control and Prevention, reported in 2004 that after decades of increasing contraceptive use, the trend stalled in the late 1990s and began to decline after that. The decline occurred almost entirely in poorer women.

Gee, imagine that. Reduced use of contraceptives leads to more abortions. Sounds like common sense, doesn't it? So why am I writing about it?

Because some people -- some relatively influential people -- disagree. Some Christian conservatives are starting to jump on the same bandwagon that Catholic groups have occupied for decades: life begins at fertilization, and anything that interferes with that is abortion. And they're willing to use laws and government regulations to force everybody to conform to their beliefs.

This weekend's New York Times Magazine had a cover story on the phenomenon. Some quotes:

"We see contraception and abortion as part of a mind-set that's worrisome in terms of respecting life. If you're trying to build a culture of life, then you have to start from the very beginning of life, from conception, and you have to include how we think and act with regard to sexuality and contraception." -- Edward R. Martin Jr., a lawyer for the public-interest firm Americans United for Life

(snip)

Dr. Joseph B. Stanford, who was appointed by President Bush in 2002 to the F.D.A.'s Reproductive Health Drugs Advisory Committee despite (or perhaps because of) his opposition to contraception, [wrote in] a 1999 essay: "Sexual union in marriage ought to be a complete giving of each spouse to the other, and when fertility (or potential fertility) is deliberately excluded from that giving I am convinced that something valuable is lost. A husband will sometimes begin to see his wife as an object of sexual pleasure who should always be available for gratification."

Here's what happened during the FDA's consideration of Plan B, the "morning after" pill.

After the agency's advisory committees voted in favor of over-the-counter status for Plan B at the end of 2003, and after it was further approved at every level of the agency's professional staff, standard procedure would have been for the Center for Drug Evaluation and Research arm of the F.D.A. to approve the application.

But one member of the F.D.A.'s Reproductive Health Drugs Advisory Committee had reservations: Dr. W. David Hager, a Christian conservative whom President Bush appointed to lead the panel in 2002. (After an outcry from women's groups, who were upset at Dr. Hager's writing that he used Jesus as a model for how he treated women in his gynecology practice, he was shifted from chairman of the panel to ordinary member.) Dr. Hager said he feared that if Plan B were freely available, it would increase sexual promiscuity among teenagers.

F.D.A. staff members presented research showing that these fears were ungrounded: large-scale studies showed no increase in sexual activity when Plan B was available to them, and both the American Academy of Pediatrics and the Society for Adolescent Medicine endorsed the switch to over-the-counter status. Others argued that the concern was outside the agency's purview: that the F.D.A.'s mandate was specifically limited to safety and did not extend to matters like whether a product might lead to people having more sex.

Meanwhile a government report later found that Dr. Janet Woodcock, deputy commissioner for operations at the F.D.A., had also expressed a fear that making the drug available over the counter could lead to "extreme promiscuous behaviors such as the medication taking on an 'urban legend' status that would lead adolescents to form sex-based cults centered around the use of Plan B."

In May 2004, the F.D.A. rejected the finding of its scientific committees and denied the application, citing some of the reasons that Dr. Hager had expressed.

The drug's manufacturer reapplied two months later, this time for permission to sell it over the counter to women ages 16 and up, seemingly dealing with the issue of youth. Then, last August, Crawford made his announcement that the F.D.A. would delay its decision, a delay that could be indefinite.

Note the outsized influence of anti-contraceptive advisors at the FDA, and the FDA's reaction when the stated concern (use by adolescents) was addressed.

Why the opposition to Plan B? The stated reason is that it is an abortifacent, on the theory that at least occasionally it prevents the implantation of a fertilized egg.

But since Plan B is simply a higher dosage of regular birth-control hormones, the same arguments could be applied to the Pill. And IUDs. (And breastfeeding, BTW). And never mind that many of these same groups also oppose other forms of contraception, like condoms and diaphragms. Or that this represents a moving of the goalposts in the abortion debate.

The story sums up the underlying issue nicely:

The conservative [viewpoint is] that giving even more government backing to emergency contraception and other escape hatches from unwanted pregnancy will lead to a new wave of sexual promiscuity. An editorial in the conservative magazine Human Events characterized the effect of such legislation as "enabling more low-income women to have consequence-free sex."

And that is relevant how?

Does effective contraception reduce the risk of pregnancy, and thus reduce a barrier to sex? Undoubtedly. But that's a personal choice, and nobody else's business. It's something to be addressed by education and persuasion, not legislation and regulation.

I have no problem with people believing that contraception is against their beliefs. I have no problem with people trying to persuade others to feel the same. But I have a big problem with using the regulatory process to try to impose those beliefs on others. If you don't want to use contraceptives, don't; but don't try to get them legally restricted so that others can't use them, either.

I also find this argument unpersuasive:

Rector says that abstinence programs can't properly be combined with other elements in a comprehensive sex education program because the message is lost when a teacher says: "One option you might want to consider is abstaining. Now let's talk about diaphragms."

If you can't make the case for abstinence compelling in context, then it's a weak argument. It's almost a "victimology" response to argue that information on contraception must be muzzled in order for abstinence education to be effective.

True, it may be a matter of emphasis. But I doubt most sex ed classes throw abstinence away as a one-liner. And if they do, the answer is to provide curricular guidelines. Spend time emphasizing the advantages of abstinence. Discuss the risks and downsides, from pregnancy to STD to social and mental impacts. Then say "If despite all that you're going to have sex, here's what you can do to reduce but not eliminate some of the risks."

And never mind that study after study has found abstinence-only programs to be ineffective.

The good news is that the people cited in this article still represent a minority view. The article mentions that 98% of sexually-active women have used some form of birth control. It also notes this, about sex ed:

A poll released in 2004 by National Public Radio, the Kaiser Family Foundation and Harvard's Kennedy School of Government found, for example, that 95 percent of parents think that schools should encourage teenagers to wait until they are older to have sex, and also that 94 percent think that kids should learn about birth control in school.

Exactly as I outlined above.

And a final statistical note:

Countries in which abortion is legal and contraception is widely available tend to rank among the lowest in rate of abortion, while those that outlaw abortion — notably in Central and South America and Africa — have rates that are among the highest. According to Stanley K. Henshaw of the Guttmacher Institute, recent drops in abortion rates in Eastern Europe are due to improved access to contraceptives. The U.S. falls somewhere in the middle in rate of abortion: at 21 per 1,000 women of reproductive age, it is roughly on par with Nigeria (25), much better than Peru (56) but far worse than the Netherlands (9).

I repeat: feel free to be personally against contraceptive use. But don't use the levers of government to force everyone else to conform to your beliefs.

birth+control, Plan B, abortion, contraception, politics, midtopia

Clearing the smoke over "partial-birth" abortion

The Supreme Court yesterday agreed to weigh the constitutionality of a ban on partial-birth abortion.

I generally steer clear of abortion topics because they're almost always pointless. You either think it's okay or you don't. If you're a moderate the issue tends to be where to draw the line, but even then the lines don't move much.

But the bloviating over this case threatens to obscure the underlying facts. So I'll do my best to lay it out.

WHAT'S AT STAKE
The claims: Pro-lifers will have you believe they're trying to put an end to a horrifying procedure that kills thousands of babies every year merely for the mother's convenience. Pro-choicers will have you believe that if we restrict this procedure, it's only a matter of time before abortion itself is outlawed.

The facts: Late-term abortions (not all of which are "partial-birth" procedures) are exceedingly rare. In 2002 there were 1.5 million abortions. Only 320 occurred after the 26th week of pregnancy. There is not an epidemic of heartless women killing their babies at the last moment. Conversely, restricting this procedure will not significantly harm abortion rights.

MEDICAL NECESSITY
The claims: Pro-lifers say there is no medical reason for the procedure. Pro-choicers say there are times when it must be used.

The facts: The case filings are full of testimony from doctors and patients outlining why late-term abortions are medically necessary. On the other hand, pro-lifers may have a point if they argue that there are alternative procedures that achieve the same medical end without the gruesomeness of partial-birth.

THE LANGUAGE OF THE BILL
The claims: Pro-lifers say they are trying to outlaw a particularly gruesome and unnecessary form of abortion. Pro-choicers say they prefer that the procedure be rare, but that the definition of "partial-birth abortion" in the bill is so broad that it could outlaw procedures used as early as the 12th week, and there is no exception for the health of the mother.

The facts: Well, the claims are the facts in this case. But the bill's sponsors need to make sure the language is specific enough that it only affects the procedure they describe to the public. Otherwise it's a bait-and-switch. And there's no reason to exclude a "health" exception, since that exception was very clearly required by previous Supreme Court rulings. The bill's sponsors were picking a fight.

So in the end, the debate isn't about whether partial-birth abortion is a good thing or not. It's about how the term is defined and what exceptions the law should recognize -- for a procedure used in less than 0.02% of all abortions in this country.

Sensible people would carefully define the term and allow a "mother's health" exception. But sensible people are in short supply in abortion arguments.

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