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.
She goes on to note that the court's previous ruling, in Stenberg v. Carhart, struck down a "partial-birth" abortion ban because it lacked a health exception. And Congress ignored that opinion when passing the Partial-Birth Abortion Ban Act in 2003 without an exception for women health. She points out that lower courts have found that the "congressional findings" underpinning the law (much like the findings of the biased South Dakota task force that formed the basis of the state's abortion ban legislation) do not pass muster. Ginsburg lambastes the congressional findings underpinning the ban:
- For example, Congress determined that no medical schools provide instruction on intact D&E. But in fact, numerous leading medical schools teach the procedure.
- Congress claimed there was a medical consensus that the banned procedure is never necessary. But the evidence 'very clearly demonstrate[d] the opposite.'
- Congress found that '[t]here is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures. But the congressional record includes letters from numerous individual physicians stating that pregnant women's health would be jeopardized under the Act, as well as statements from nine professional associations, including ACOG, the American Public Health Association, and the California Medical Association, attesting that intact D&E carries meaningful safety advantages over other methods.
- No comparable medical groups supported the ban. In fact, all of the government's own witnesses disagreed with many of the specific congressional findings.
She also points out that, with this decision, the Court is upholding the bullshit premise that all women are harmed by their decision to have an abortion.
Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from '[s]evere depression and loss of esteem.' Because of women's fragile emotional state and because of the bond of love the mother has for her child,' the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.This way of thinking reflects ancient notions about women's place in the family and under the Constitution ideas that have long since been discredited.
Thank you, Justice Ginsburg.
3 TrackBacks
Listed below are links to blogs that reference this entry: "Today's decision is alarming.".
TrackBack URL for this entry: http://www.feministing.com/cgi-bin/movabletype/mt-tb.fcgi/5142
Today, the Court issued a 5-4 decision upholding a nationwide ban on certain forms of abortion. This roundup will focus on that case: Jack Balkin notes that this decision reworks the Casey opinion: the Court emphasizes Casey's holding that states... Read More
Today, the Court issued a 5-4 decision upholding a nationwide ban on certain forms of abortion. This roundup will focus on that case: Jack Balkin notes that this decision reworks the Casey opinion: the Court emphasizes Casey's holding that states... Read More
We need to fight them here. We aren’t going to win many victories in the sexist Supreme Court for a while. Let’s get a huge megaphone and advocate women’s reproductive rights in Mississippi. Let’s rip away the veil and reveal the so-called... Read More
Weekly Feministing Newsletter
Feministing RSS Feed
Amen, Ann.
That's beautifully said. Add my thanks to the list. It's nice to know that there's still someone out there in judicial land who's willing to speak up for the rights of women as free, individual human beings. Even if they didn't listen to her.
I'll post this on the other thread too, but for anyone in DC, Planned Parenthood is planning a 3pm rally in front of SCOTUS.
Come out, and be loud.
Justice Ginsberg's comments are beautifully clear. Any attempt to legislate based on a woman's "emotional health" goes against equal protection under the law.
thank you, indeed.
In talking about the comparison between intact and non-intact D&E, I found this bit in Ginsburg's dissent especially telling: "Delivery of an intact, albeit nonviable, fetus warrants special condemnation, the Court maintains, because a fetus that is not dismembered resembles an infant."
The court felt that intact D&E looked too much like infanticide, because the fetus looked like a baby, whereas the D&E where they dismember the fetus in utero was okay, because what came out of the uterus didn't look like a baby.
So, basically, the court is saying (among other things) that aesthetics are more important than a woman's health. The woman will have an abortion regardless, but she can't have what may be the safer procedure for her because of 'but it looks like a cute widdle baybee! (barring the frightening deformities could have led to the decision to abort, of course).'
And don't get me started on the ignoring of evidence, precedence, common sense and compassion.
Does anyone have a mailing address or email address I can use to show my support to Justice Ginsburg?
Most likely a stupid question, but would the ratification of the ERA make things easier on the reproductive freedoms front?
I've heard people trying to justify this decision because "there are other options available" and those options are overwhelmingly more common and there's "no situation" in which this sort of procedure would be "necessary" to protect the woman's health.
Well, if that's the case, then what practical effect does this ruling have, and what could the intend of Congress POSSIBLY have been? I can think only of two possibilities: (1) it's meant to (and will) have a disproportionate effect on poor and uneducated women (this one works from the assumption that sometimes the alternative procedures are less desirable for some reason, likely having to do with associated costs, recovery costs, etc.), and/or (2) it was meant to (and did) "test the waters" and get a foot in the precedential door to chip away at women's rights to choose. This was the first battle of many -- and the symbolic victory will only spur on the anti-choice troops to a larger, bloodier, deadlier war.
Good question, Magpie_Malone. I did a quick search of the Supreme Court website and all I could find was this line on the "Where to Send Comments" page: Substantive questions should be directed, in writing, to the Public Information Officer, Supreme Court of the United States, Washington, DC 20543. Perhaps others can find more specific information.
I will certainly sit down to write a personal note of thanks to Justice Ginsburg for her eloquent dissent. I just finished reading it. So much to be angry about, but I was truly impressed by the way she grounded her dissent not only in legal precedent (very important, obviously), but also a firm understanding of the central importance of women's "right to reproductive choice" (p. 4). She was very articulate about the factors which affect all women's access to medical care, at all ages and income levels.
A couple of passages which stuck out for me:
"In fact, 'all of the government's own witnesses disagreed with many of the specific congressional findings.'" (p. 9; repeated in fn. 5, p. 11) I'm sorry, what alternate universe have we wandered into? Where our government can make official findings that run contrary to the testimony of experts they brought in???
"Eliminating or reducing women's reproductive choices is manifestly not a means of protecting them."(p. 17, fn. 9) That right there pretty much says all there needs to be said about what is wrong with this ruling.
And I agree with JPlum: the suggestion that somehow dismembering a fetus in utero is more humane than an intact delivery of an fetus that (for whatever reason) will not survive outside the womb, is really troubling. It seems like the options this ruling leaves us with are more disrespectful towards human life (even potential life) than the wider range of options.
From what little I know about this procedure and why it's done (and I know damn little about it, really), off the top of my head I can't think of any reason to perform it EXCEPT for the health of the mother.
What are the other reasons this procedure is performed, if any?
I have never been prouder to share her name. Amen, Justice Ginsburg.
I love this woman.
I can think of an excellent reason why the non-intact D&E is excluded from this bill. "Excellent" in this context meaning perverse, of course.
P-O-L-I-T-I-C-S. Look for something along the lines of "In Utero Dismemberment Abortion Ban" or something along those lines coming your way in the near future.
What are the other reasons this procedure is performed, if any?
If a fetus will be nonviable once born due to severe birth defects, or if it has birth defects that will result in a life of tremendous suffering and abbreviated length, like Taye-Sachs disease, I believe this procedure may also be used.
There is a deeply upsetting post at Feministe in which a woman had to have this sort of abortion when a much-wanted baby was found to have horrible birth defects that would have destroyed it during labor. You can find it here.
Just a note: I used the word "baby" instead of "fetus" out of respect for the woman's desires, her plans, and her sense of sorrow and loss.
The way it's written, it looks as though it will also apply even if the fetus is dead. So, the woman is already in a state of severe distress and physical illness because of a dead fetus, and instead of being able to get it out safely they have to either do a c-section or dismemberment D&E, both of which carry far higher risks of infection to the mother. That's just great. I can't wait to see how the Supreme Court tramples on women next.
In the FWIW department, Kennedy acknowledges that the congressional recitations in the PBA are "factually incorrect"--see pp. 35-36.
I'll be blogging this later. I don't love this ruling, but it isn't as bad as it could be.
Worth noting, right off the bat, is that when Scalia and Thomas wrote a concurrence stating that they do not believe that there is a right to an abortion (the topic of the majority ruling being whether or not the bill violates said right), Alito and Roberts did not join in. They took the same position Kennedy did, which is that there is a right to abortion but that this bill does not place an undue burden on that right.
I'll be charting this out on my blog in an hour or two, but basically the dynamic changed from:
Anti-Roe: 3
Rehnquist
Scalia
Thomas
Pro-Roe, Narrow Interpretation: 1
Kennedy
Pro-Roe, Broad Interpretation: 5
Breyer
Ginsburg
O'Connor
Souter
Stevens
...to...
Anti-Roe: 2
Scalia
Thomas
Pro-Roe, Narrow Interpretation: 3
Alito
Kennedy
Roberts
Pro-Roe, Broad Interpretation: 4
Breyer
Ginsburg
Souter
Stevens
What we saw in this 5-4 ruling was the no-Roe (Scalia, Thomas) and the narrow-Roe (Alito, Kennedy, Roberts) jointly upholding the Act, on different grounds. What I had expected was for Alito and Roberts to join Scalia and Thomas in stating opposition to Roe v. Wade, and the fact that they refused to do so is extremely significant.
Cheers,
TH
TH, I really like your analysis -- and even more, I REALLY hope it holds up in future opinions. Really, really, really.
You and me both!
Cheers,
TH
I think the most moving part of the decision was the part where they described sticking the scissors in the back of the moving child's head (delivered up to the chin), spreading them, and then inserting a tube to suck out the brains. I mean, if anything just screams "women's rights depend on their ability to obtain a D&X," its that.
Umm, Minga, the procedure that is still available that anti-abortion advocates are now forcing doctors to do actually dismembers the whole fetus to get it out, as opposed to only collapsing the head.
Non medical people, like legislators and anti-choice trolls, should stay out of medical discussions.
Male progressives like Kos, Atrios, Matt, John Aravosis, John Amato, etc. have to put the pro-choice issue front and center until 2008 because it shouldn't just be Jessica, Ann, Amanda, Jill, Zuzu, etc. who talk about this all the time. The mainstream media will pick up what the men say and mostly ignore what women say. It's the people who will decide the future of Roe v. Wade and we already know Americans are for it. Public dialogue will be very important to drown out the bogus voices out there (the 5 judges who voted for this are Catholics, Roberts, Alito, Thomas, Kennedy and Souter. Republicans chose the strategy of appointing Catholics so they could call pro-choice activists "anti-Catholic") and progressives have to put the message out there.
I thought Thomas had become an Episcopalian after his divorce?
Cheers,
TH
Thomas is Catholic. Wikipedia says Raised Roman Catholic (he later attended an Episcopal church with his wife, but returned to the Catholic Church in the late 1990s), Thomas considered entering the priesthood, attending St. John Vianney's Minor Seminary on the Isle of Hope near Savannah, and he briefly attended Conception Seminary College, a Catholic seminary in Missouri. Thomas told interviewers that he left the seminary (and the call for priesthood) after hearing racist comments there following the assassination of Martin Luther King.
Thomas has one child, Jamal Adeen, from his first marriage. This marriage, to Kate Ambush, lasted from 1971 until their 1984 divorce. Thomas married Virginia Lamp in 1987.
Since joining the Supreme Court, Thomas requested an annulment of his first marriage from the Catholic Church, which was granted by the Tribunal of the Catholic Diocese of Arlington. He was reconciled to the Catholic Church in the mid-1990s and remains a practicing Catholic.