I wrote this after reading the various threads that were spurred by the late-term abortion ban.

Pro-Life Patter

what if he’s
the next
Mozart
if he cures cancer
could end
racism
have you
thought about
adoption
what if
you want
children someday
if not now
when?

you should
be grateful
you’re the
kind of
person who
should be
having children
there are children starving
in China
& some people can’t
have kids
of their own

real mothers
give up everything
you’re a murdering
slut you bitch
cunt spread your
legs should be
raped i’ll kill
you myself i ought
to pull you apart
joint by joint
and see
what you think of
bodily integrity then

abortion is
genocide
it’s eugenics
Margaret Sanger was
a racist
it’s a modern
Holocaust
doctors can
be wrong
have you seen
its tiny
hands
feet
heartbeat
how can you end
a tiny life
what if mary
had said no what if
your mother
had been
pro-choice?

sometimes you have to
stand up take
responsibility
be an adult
pay for playing
you said yes
once you let
him come it’s your
problem now don’t
come crying
to me for
sympathy
you spread
your legs and now
you have to
handle it
yourself.

Via Mahablog and Lawyers Guns And Money, I read this interesting Washington Post article about a split in the “pro-life” movement over the “Partial Birth Abortion” ban.

What’s interesting is that some of the pro-lifers are admitting to the truth about the Partial Birth Abortion ban (PBA ban) — truths that leaders of the pro-life movement have been blatantly lying about for years. In this story, pro-lifers admit:

• That a PBA ban will not prevent a single abortion.
• That the alternative procedures are more dangerous for women.
• That some alternative procedures doctors will use now are if anything more brutal from a fetus-centric point of view.
• That PBA bans have nothing to do with reducing abortion and everything to do with fundraising and Republicans winning elections.

It’s refreshing to read pro-life leaders finally (albeit temporarily) telling the truth.

The most appalling quote comes from the vice president of Focus on the Family, Tom Minnery, arguing in favor of the PBA ban. It’s nothing we didn’t already suspect, but it’s amazing that Minnery was careless enough to say it in pubilc:

“The old procedure, which is still legal, involves using forceps to pull the baby apart in utero, which means there is greater legal liability and danger of internal bleeding from a perforated uterus. So we firmly believe there will be fewer later-term abortions as a result of this ruling.”

For years pro-lifers have been pushing the same lie: they’ve claimed¹ that a procedure that involves inserting forceps into a woman’s uterus as many as a dozen times over (a standard D&E) has no greater chance of causing injury than a procedure which requires only a single insertion (a D&X, which is more-or-less the procedure that’s been banned by the Partial Birth Abortion ban).²

Now Focus on the Family’s man in charge of policy not only admits that was a lie, but suggests that increased risk to women is a benefit: the “greater danger of internal bleeding from a perforated uterus” is good, because it might discourage some “later-term”³ abortions.

As Scott at Lawyers, Guns and Money writes:

As you can see, most anti-choicers (despite the bad faith Congressional findings that 2+2=171) don’t really think that these bans on a safer procedure protect women’s physical health. They simply believe that women can’t be trusted to make judgments about their own lives, and if this causes some women to be seriously injured that’s a feature, not a bug. It’s almost impossible to overstate how disgusting this legislation is, and how deeply entwined outright misogyny is with the American “pro-life” movement.

Although Minnery is correct to say that the ban he and his movement favor puts women in danger, I doubt there will be any less abortion as a result. Chuck Donovan of the pro-life Family Research Council is probably right when he says “there may not be even one fewer abortion in the country as a result” of the PBA ban — but note that he’s only admitting that now that the PBA ban has been made law. For years, contrary to what Donovan now admits, pro-life leaders have been claiming — ridiculously — that the partial-birth abortion ban would save little baby lives (all the better to pry open the wallets of the pro-life rank and file). And the vast majority of pro-lifers in this country, who are either totally amoral about lying or complete dupes of their leadership, have been content to let them get away with it.

Now some in the pro-life movement — although no one as major league as Focus On The Family or the Family Research Council — are complaining about the constant lying about this issue by pro-lifer leaders. From “An Open Letter To James Dobson”:

Dr. Dobson, you mislead Christians claiming this ruling will “protect children.” The court granted no authority to save the life of even a single child…. Your correspond­ence depart­ment… told us that with this PBA ruling, “The U.S. Supreme Court made it illegal for women to have an abortion in the last trimester.” Online at KGOV.com, we also document other pro-life media outlets misrep­resenting this vicious ruling. Following your example, many national ministries have spent years using the PBA ban to motivate financial donations, all the while misrepre­senting the legal effect of the ban. Today millions of Christians, including your own staff, have been deceived. …The court explicitly stated the PBA ban “does not on its face impose a substantial obstacle” to “late-term” abortion (p. 26). And since this ban cannot prevent a single abortion, of course, it imposes no obstacle, and neither does it “protect children” (your words) or ban “abortion in the last trimester” (words offered by some of your staff).

More pro-life dissidents, quoted in the Washington Post article:

Rev. Bob Enyart, a Christian talk radio host and pastor of the Denver Bible Church, said the real issue is fundraising. “Over the past seven years, the partial-birth abortion ban as a fundraising technique has brought in over a quarter of a billion dollars” for major antiabortion groups, “but the ban has no authority to prevent a single abortion, and pro-life donors were never told that,” he said. “That’s why we call it the pro-life industry.”

In Rohrbough’s view, partisan politics is also involved. “What happened in the abortion world is that groups like National Right to Life, they’re really a wing of the Republican Party, and they’re not geared to push for personhood for an unborn child — they’re geared to getting Republicans elected,” he said. “So we’re seeing these ridiculous laws like the Partial-Birth Abortion Ban put forward, and then we’re deceived about what they really do.”

But despite this deep split within the pro-life movement, rest assured that there are some things that they all have in common. For instance, the way that virtually all of these pro-life spokespeople are men. For another, the way that none of them ever express the slightest concern for women’s health or well-being. So you see, they agree on the fundamentals.

More blogging on this story: Our Bodies Our Selves, Feministing, Balkinization,A Foolish Consistency, Dizzy Dayz, Political Animal, and Ryoga. And the aforementioned Mahablog and Lawyers, Guns and Money. And (edited to add) The Debate Link, The Thinkery, Fattmixx, Bligbi, RH Reality Check, Pseudo-Adrienne, The Carpetbagger Report, Obsidian Wings, and Pandagon.

1. See, for example, the text of the Federal Partial Birth Abortion Ban, which explicitly claims “partial birth” abortions are never safer. (back)
2. This article, via Mahablog, describes other ways doctors are experimenting with possibly less safe procedures in order to avoid breaking the new law. (back)
3. In fact, as Mahablog points out, most uses of the now-banned D&X procedure take place pre-viability, and would be more accurately described as “mid-term” than “late-term” abortions. (back)

There are lots of things I don’t understand about this world, many of which are the number of intelligent, awesome, analytical feminists who support the Democrats. From Katha Pollit:

So now you know. It really does matter who’s President and which party controls Congress. A Democratic-controlled Congress would never have passed the Partial-Birth Abortion Act, which banned intact dilation and extraction abortions and, in flagrant violation of Roe v. Wade, lacked an exception to preserve the health of the woman. A Democratic President would never have signed such a bill. Nor would he have nominated the extremely conservative antichoicers John Roberts and Samuel Alito to the Supreme Court, which on April 18 upheld, in Gonzales v. Carhart by a 5-to-4 vote (Roberts, Alito, Kennedy, Scalia, Thomas–all GOP nominees), a ban essentially identical to one rejected 5 to 4 in Stenberg v. Carhart seven years ago, when Sandra Day O’Connor was on the bench.

A Democratic president may have never signed this particular bill, but that doesn’t make them staunch upholders of abortion rights. Poor women’s right to abortion were extinguished with the 1976 Hyde Amendment. The Democrats controlled both the House and the Senate, when the Hyde Amendment was passed. Then Democratic Presidential candidate Jimmy Carter indicated that he would support the amendment, and this support was one of the reasons Ford backed-down on his threat to veto the legislation. In 1980 the supreme court ruled on the constitutionality of the Hyde Amendment; at this time there were two justices who had been appointed by Democratic presidents. If both of those justices had supported poor women’s rights to abortion then the Hyde Amendment would have been ruled unconstitutional, but they did not.

I am not meaning to downplay the seriousness of the latest decision when I say that the effect it will have on women’s lives is extremely limited, when compared to the effect of the Hyde Amendment. The most serious attack on American women’s right to an abortion was a bipartisan effort, and the Democrats more than played their part.

Updated Since writing this post I have learned that the Hyde Amendment (which needs to be authorised every year, so has been supported by every democratic controlled house and senate, and every democratic president since 1977) was debated in 1994. At this stage the democratic controlled house and senate upheld the ban. They added rape and incest exceptions (the original amendment already had a life of the mother clause), but did not add a health of the mother exception. The Democrats support of the Hyde Amendment is not history.

From a CNN story on the Supreme Court’s upholding of the “Partial Birth” abortion ban:

“A lot of us wish that Alito weren’t there and O’Connor were there,” Senate Majority Leader Harry Reid, D-Nevada, who opposed Alito’s nomination, said.

Harry Reid was one of 17 Democrats who voted in favor of the Federal “partial birth” abortion ban becoming law (without those 17 democrats, the bill wouldn’t have passed). If Reid thinks that the Court should have found the Federal PBA ban unconstitutional, then WHY DID HE VOTE FOR IT???? As Johnathan Adler writes, “Call me old fashioned, but I believe that if a member of the Senate believes a law is unconstitutional, he or she should vote against it.”

And why didn’t CNN point out Reid’s hypocrisy?

I haven’t had much energy to read about the latest disaster from the US supreme court. Back there I used the word ‘disaster’ which is about the extent of my analysis (although it does cover lots of issues quite well).*

But I was reading Phantom Scribbler’s excellent post What the Mommy Bloggers Know

If you’re mainstream media or one of the major political blogs, and you’ve just put together some sort of roundup of the blogs’ discussion of yesterday’s Supreme Court decision, we, the legions of irrelevant mommy bloggers, would like to let you know that we have found it lacking. What, you say? Surely everyone knows that mommy bloggers are only good for talking about naps, dirty diapers, and Linda Hirshman. Far be it from me to assert otherwise. But on the other hand, the mommy bloggers all know that the blogger whose voice is really essential to this discussion is Cecily.

Cecily writes at and I wasted all that birth control, and her post on the supreme court decision should be required reading:

Personally, I do not know which procedure I had. At 22.5 weeks gestation (when my pregnancy ended–and that is based on my last menstrual period, remember, not the date of implantation, so the fetuses were really 20.5 week along) I was right on the line between trimesters. Plus the fact that there where two fetus (one barely alive, and one dead) could have impacted which surgery I had.

Other than having a medical termination, the options open to someone in my position are usually either a) emergency c-section, and b) induced delivery.

My doctor believed–given my particular circumstances–that it would be better for both my short term and long term health to not cut open my body if at all possible. My health was in a precarious state, and the option of a medical termination was the fastest, safest, and least complicated procedure to use. It also preserved the health of my uterus for future pregnancies.

I’m not a parent, but I read some ‘Mommy blogs’ written by feminists, because they have some of the best feminist analysis on the web.

This post contains about 20 links to feminist analysis of the Supreme Court’s opinion approving a ban on so-called “Partial Birth” abortions.

Read the rest of this entry »

In the clunkiest passage of his Gonzales decision, Justice Kennedy claims that banning late-term abortion is justified because he cares about women sooooo much:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.

In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. [...]

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.

It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions.

Read the rest of this entry »

Gonzales vs. Carhart, today’s Supreme Court decision upholding the Federal “Partial Birth” abortion (PBA) ban,¹ is a terrible decision for freedom and for women in many ways. But the most destructive element of the Court’s decision is a relatively obscure argument buried deep in Kennedy’s decision.

From Kennedy’s decision:

This is the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used. In an as-applied challenge the nature of the medical risk can be better quantified and balanced than in a facial attack. [...]

As the previous sections of this opinion explain, respondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases. Casey, supra, at 895 (opinion of the Court). We note that the statute here applies to all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications. It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop.

What Kennedy is saying here is that if pro-lifers pass an abortion ban without any health exception, then women can successfully sue to have the ban overturned only in “as applied” cases. So a ban might not be illegal generally, but it still might be illegal in the case of Betty Smith of Memphis, who might be able to convince a court the ban “as applied” to women with her specific health circumstances is unconstitutional because it threatens her health.

But even if one lawsuit is successful in overturning the law “as applied” to the particular person who sued, the law could still apply to other women in other circumstances - meaning all those women would have to sue individually if they think the law is unconstitutionally being applied to them. The net effect could be to make it much harder for pro-choice activists to get Courts to consider whether or not new abortion-related laws are Constitutional.

Read the rest of this entry »

1. Here is an AP article reporting the Gonzales decision, and here is the text of the decision itself. (back)

I really like to assume the best of everyone, even people I disagree with.

And I try hard to take what opponents say, at their word.

But sometimes it’s hard.

A lot of people who favor forced childbirth for pregnant women say that they believe that an abortion, even early in pregnancy, is identical to child murder. Have an abortion, shoot a four-year-old in the head; morally, it’s the same. Or, anyhow, that’s what they claim to believe.

In contrast, pro-choicers tend to think that the abortion criminalization movement is motivated by a desire - perhaps an unconscious desire - to punish women for having sex.

I used to reject that latter view as a pointless ad hominem attack. Nowadays, I’m not so sure. Although I’ve met some rank-and-file “pro-lifers” whose policy preferences were consistent with a belief that a fetus is morally indistinguishable from a child, those folks usually have policy preferences which are totally out of step with the abortion criminalization movement as a whole.

In contrast, the leaders of the abortion criminalization movement have consistently put their political weight behind policies which make little or no sense if they genuinely think that abortion is identical to child murder. And those same leaders routinely endorse policies that make a lot of sense if their goal is to penalize women who have sex - to, as I’ve heard many of them put it, make sure women “face the consequences” of having sex. And they’ve done so with the apparent backing and blessing of the vast majority of the rank and file. Let’s review:

Almost none of their policies make sense if they really see no difference between the death of a fetus and the death of a four-year-old. However, nearly all their policies make sense if they’re seeking to make sure that women who have sex “face the consequences.” are punished. After years of seeing this pattern repeated again and again, it’s difficult to take them at their word.

Pro-life feminists exist - although the ones I respect are committed to reducing abortion by changing society so that women are much less likely to choose abortion, rather than by calling for forced childbirth for pregnant women. The “reducing demand” approach is, imo, perfectly compatible with feminism.

Unfortunately, most self-identified pro-life feminists are indistinguishable from their non-feminist counterparts. For example,: Nathan Sheets, posting on the “feminists for life” community, discusses the intact D&X abortion procedure (also known as “partial birth” abortion):

Contrary to what Nathan thinks, a woman’s body changes throughout pregnancy to prepare her to give birth. A woman in her ninth month of pregnancy, whose body has fully adjusted for giving birth, can safely deliver an intact baby head - usually. (Even at nine months, childbirth is still dangerous for a significant number of mothers.)

But late-term abortions don’t take place at nine months; virtually all of them take place before the 24th week. At that point, it’s simply not safe for the woman to deliver something as large as an intact fetal head, because her body hasn’t prepared for it. Which is why doctors compress the fetus’ head before delivery.

Even when the fetus is already dead (which is not uncommon with intact d&x abortions), a doctor performing an intact d&x will still compress the fetal head. Not to do so vastly increases the chance of the mother being injured, and would be medically irresponsible.

Unfortunately, I don’t think Nathan’s ignorance - or Nathan’s demonizing of women who have abortions as death-loving harpies - is all that unusual among the pro-forced-childbirth crowd, whether or not they self-identify as “feminist.”

(I originally wrote this as a reply to post on the feminists for life livejournal. But it turns out they don’t let non-members post, so I’m posting it here instead.)

I’m seeing a lot of comments such as this one on Media Girl:

But now, our last line of defense for Roe v. Wade before it’s inevitably overturned (Roberts has actually argued that Roe was “wrongly decided and should be overruled”) is the Senate.

Even if Roberts is confirmed (and let’s face it - he will be), that doesn’t make it inevitable that Roe and Casey will be overturned. Although it’s impossible to know for sure, with Roberts replacing O’Connor, there are probably four votes for overturning Roe: Roberts, Rehnquist, Thomas, and Scalia. That still leaves a five-vote majority against overturning Roe: Ginsberg, Kennedy, Breyer, Souter, and Stevens. Bush will have to replace one of those five with an anti-Roe vote before Roe can be overturned, and it’s not certain he’ll get a chance to do that.

I’m not saying that it’s a bad idea to plan for how to respond if Roe is overturned, but let’s not call it “inevitable” just yet.

However, even if Roe isn’t overturned, abortion rights can still be chipped away at. With Roberts on the court, the previously unconstitutional “Partial Birth” Abortion ban will probably become constitutional. But even after that happens, there will be further lawsuits to determine how the PBA ban is interpreted - pro-lifers will want to interpret it broadly to ban a lot of abortions. But even with a majority of the Court favoring a PBA ban, it’s not certain that a majority of the Court would accept a broad interpretation of the PBA ban. (In particular, I think it’s possible that Justice Kennedy, who would be the new swing vote, would balk at that.)

From the New York Times:

The decision, by a three-judge panel of the United States Court of Appeals for the Eighth Circuit, in St. Louis, was the first that an appeals court has issued on the ban, which Congress approved in November 2003 with the strong backing of President Bush.

The ruling, written by Judge Kermit Edward Bye and joined by Judges James B. Loken and George G. Fagg, found the law unconstitutional because, while making an exception to the ban to protect the life of a pregnant woman, it made no such exception to preserve her health.

That an appeals court has now ruled on the matter moves the law one step closer to a likely review by the Supreme Court, perhaps in the coming term. In a rare point of agreement between adversaries in the abortion debate, advocates on both sides said the stakes had now been raised even further in Mr. Bush’s selection of a nominee to succeed Justice Sandra Day O’Connor.

The Eighth Circuit’s ruling rests heavily on a decision by the Supreme Court, which, in Stenberg v. Carhart five years ago, struck down such a ban that had been enacted by Nebraska. Before Justice O’Connor announced her retirement last week, the balance on the court in favor of a constitutional right to abortion was 6 to 3. But in Stenberg, the majority was only 5 to 4, with Justice Anthony M. Kennedy voting to sustain the state ban and Justice O’Connor’s vote making the majority.

(Related post from the archives: Judge Richard Kopf’s decision overturning the PBA ban, which the Eighth Circuit has now upheld.)

It’s scary to think that, probably, the Supreme Court will rule that women’s health does not matter.

And it’s impressive how successfully pro-lifers have manipulated this issue. The legal controversy is not, and never has been, whether or not “partial birth” abortion (whatever that means) can be banned. It can be. If the Republicans hadn’t obstructed it, a PBA ban would have become law years ago, and the Courts wouldn’t have objected.

The primary legal controversy about PBA bans is, does protecting women’s health matter? The Supreme Court, in Carhart, said “a State may promote but not endanger a woman’s health when it regulates the methods of abortion” and that “the absence of a health exception will place women at an unnecessary risk of tragic health consequences.” In other words, they ruled that women’s health matters.

Republicans passionately oppose the idea that women’s health matters, and therefore have blocked PBA bans that protected the mother’s health. I find their view barbaric.

First woman to serve as US supreme court justice retires

Justice Sandra Day O’Connor, the first woman appointed to the United States’ supreme court, today announced her retirement, paving the way for an ideological battle over her successor.

In the divided supreme court, Ms Justice O’Connor was a crucial figure who often cast the deciding vote on contentious issues such as abortion. Her appointment in 1981, by the then president Ronald Reagan, ended 191 years of male exclusivity in the high court.

I’m going to use this post to post interesting quotes from around the Blogosphere, so I’ll be updating it as I browse.

From Orin Kerr of the Volokh Conspiracy (and via Dispatches from the Culture Wars):

9. O’Connor’s retirement may shift the Court a lot less than people think. In the big ideological cases of the last Term, Justice Kennedy was the swing vote as often as (or maybe even more often than) Justice O’Connor. Let’s assume for now that O’Connor is replaced by a consistently more conservative Justice; even if that’s true, the left-of-center Justices presumably still have 4 very reliable votes and a good shot at picking up a 5th vote with Kennedy. Plus, new Justices are hard to predict, and it’s often hard to tell whether a new Justice will vote consistently one way or another.

10. We’re likely to hear a lot about the future of Roe v. Wade in coming weeks and months. The common wisdom, assuming no shifts in votes from past cases, is that the 8 remaining Justices include 5 votes for Roe (RBG, SGB, DHS, JPS, AMK) and 3 against (AS, CT, WHR). On the constitutionality of partial-birth abortion bans, the common wisdom is that the 8 remaining Justices split 4 to 4, with Justice Kennedy switching as seen by his vote in Stenberg v. Carhart.

* * *

Marty Lederman at SCOTUSblog is putting together a list of important decisions in which O’Connor was the swing vote.

* * *

Bitch, PhD writes:

I predict the death of Roe V. Wade.

Sandra Day O’Connor just announced her retirement. And Rehnquist is dying.

There goes our 5-4 lead.

Actually, Roe has a 6-3 lead. So Roe is safe for now, unless at least one more of the six anti-Roe votes retires. Rehnquist is firmly anti-Roe, so replacing him with another Justice can’t hurt Roe.

However, O’Connor was the swing vote on “Partial Birth” abortion, so there’s a good chance that pro-lifers are finally going to be able to get through a PBA ban that has no provision to protect the woman’s health.

* * *

From Project Nothing:

IF YOU’RE NOT WATCHING CABLE NEWS - It’s basically playing out like you’d expect. Republicans are already painting Democrats as obstructionists by saying “not letting the president have his nominees”? confirmed is a “fundamental misunderstanding of democracy”? and the Democrats are screaming for a moderate which is, like I said, someone who will not overturn Roe v. Wade.

* * *

From Jesse at Pandagon:

Some are saying that we should draft Prado, however, I just support replacing the entire court with Galactus, who is not only truly impartial, but also reserves the right to eat all of us should the mood strike.

* * *

From Nathan Newman:

The trap for progressives on the nominations fight for O’Connor’s successor is just to talk about abortion and other social issues. We need to split social conservatives away from their corporate allies and highlight the rightwing ECONOMIC views of potential nominees.

The Supreme Court is the interpreter of legislative statutes and they can either enforce them strongly on behalf of the rights of middle class families or they can give corporations a free pass to loot pensions, poison the environment and violate their employees rights at work.

We need to wedge the opposition base and, even if some Bush supporters cheer an anti-choice nominee, we should raise questions with them about why that nominee also screws workers in all their legal decisions and never really punish corporations for their wrongdoing.

* * *

From Mark Graber on Balkinization:

Justice O’Connor’s resignation today raises interesting questions about her political identification. If one reads many far-right wing sites, O’Connor was a liberal, barely distinguishable from Justice Ginsburg, if not Jesse Jackson. Yet, if the rumors of her comments when Gore was thought the victor of the 2000 election are correct, and there is some truth to claims that Justices try to time resignations, Justice O’Connor clearly preferred that Bush appoint her successor than Gore. Apparently, her efforts to push the court to the right on such matters as federalism and takings were far more important to her than the occasional vote to overturn a particularly eggregious death sentence and the privacy cases.

The most interesting question now is whether the Bush administration will try to defend its version of judicial activism or, more typically, deny that the administration has any agenda other than vague strict construction. At least Democrats openly admit the forms of judicial activism they favor.

* * *

LiberalOasis has a good post on fighting Bush’s nomination (assuming that nomination is unacceptable from a lefty point of view - which seems like a safe assumption).

Bush V. Choice has a collection of “What you can do” links.

* * *

From Ezra Klien:

So here’s a question: can we actually block anyone that Bush wants? The last heroic victory was the rejection of Robert Bork, and that was pulled off by a 55-45 Democratic majority. I guess we can filibuster, at least assuming the nuclear option can be blocked, but what, realistically speaking, is the plan here? Make a judgment call, shut down the Senate over Luttig, and hope we win the aftermath? With party loyalty as strong as it is in this era — even Janice Rogers Brown got confirmed, contrary to Graham’s predictions that she wouldn’t — do Democrats have any possible chance of winning this without a filibuster?

And from “Jim” in Ezra’s comments:

The best the Dems can do is to conduct a spirited information campaign. We should fight a bad candidate, but any Bush choice is unlikely to be centrist like O’Conner. Only if the nominee is as bad as Janice Rodgers Brown should the Dems conduct a filibuster, since we will be labelled as obstructionists by the media - with a unified GOP attack and distortion machine behind them.

This does not mean rolling over for Bush, or voting for a bad nominee. United Dem party opposition is even more important if you are going to lose since making the electoral choices for the future depends on CHOICE - we must be an alternative.

Many soft Dems will vote with Bush once they know the Dems can’t prevail. That is one of the principal reasons the party is weak.

* * *

Scott at Lawyers Guns and Money concurs that O’Connor’s retirement doesn’t mean that Roe is doomed - but it’s certainly cause for concern.

Having said that, this is not to say that O’Connor’s replacement doesn’t matter for abortion right–far from it. First of all, it means that the “partial birth abortion” ban passed by Congress will almost certainly be upheld, something that has all kinds of potential for mischief. It also means that the chances of abortion regulation meeting the “undue burden” test has become greater. And, of course, even if the effect of replacing O’Connor is to make the vote for upholding Casey 5-4 rather than 6-3, that’s obviously not trivial. John Paul Stevens is 85. Ruth Bader Ginsburg is 72 and has had cancer. As today’s announcement reminds us, Supreme Court resignations are unpredictable; we could easily see a dam burst, as happened in the 30s, and we don’t know who will be in the White House in 2008. So, no matter what Kennedy’s current views are, O’Connor’s resignation and replacement matter a great deal for reproductive freedom.

…MJD brings up another point in the comments below. I do think that overturning Roe would not, on balance, be good for the Republican Party. My guess, though, is that this doesn’t really matter to Bush. If he’s willing to make social security privitization the domestic centerpiece of his second term, he’s certainly going to be willing to appoint an anti-Roe justice to replace O’Connor. Everything about the lead-up suggests that Bush wants the most conservative justice he can get through the Senate.

* * *

Regarding O’Connor’s legacy, Scott quotes Jeffrey Rosen from The New Republic in 2000 to good effect:

And, by not even bothering to cloak their willfulness in legal arguments intelligible to people of good faith who do not share their views, these four vain men and one vain woman have not only cast a cloud over the presidency of George W. Bush. They have, far more importantly, made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O’Connor [...]

The unsigned per curiam opinion in Bush v. Gore is a shabby piece of work. Although the justices who handed the election to Bush–O’Connor and Kennedy– were afraid to sign their names, the opinion unmasks them more nakedly than any TV camera ever could. To understand the weakness of the conservatives’ constitutional argument, you need only restate it: Its various strands collapse on themselves. And, because their argument is tailor-made for this occasion, the conservatives can point to no cases that directly support it. As Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer wrote in their joint dissent, this “can only lend credence to the most cynical appraisal of the work of judges throughout the land.”

The most important part of O’Connor’s legacy is that, when push came to shove, she was a traitor to Democracy in order to protect a Conservative candidate.

* * *

A point that came up when I was talking to my mother (hi, Mom!):

As my mom argued, I think persuasively, it’s good that O’Connor retired first. There was no chance she wasn’t going to retire, and there will be more energy in the Democrats for the first nomination fight than for subsequent nomination fights. It’s in our favor that Rehnquist wasn’t the first to go.

On the other hand, I’m still pretty pessimistic overall. Even if the Democrats are united, I don’t think they’ll be able to block a right-wing replacement for O’Connor - the “nuclear option” guarantees that the Republicans, if they stick together, will win.

This post was removed by request of the author.

Something that isn’t talked about enough is that abortion bans overreach. That is, most abortion bans say “abortion is banned except in cases X, Y and Z.” But in practice, the very act of banning abortion ensures that for many women safe, legal abortion will be unavailable - even if they fall into one of the exceptions written into the abortion ban.

Reproductive Health Matters volume 10, issue 19 (not online, sorry), has a report on the results of Poland’s abortion ban (Poland banned abortion in 1993, except in cases of rape, a threat to the health or life of the mother, or a severely damaged fetus). The Polish abortion ban is fairly similar to what pro-lifers in the USA have proposed, except that American pro-lifers are opposed to health exemptions.

The law didn’t measurably reduce the number of Polish abortions; it did, however, force hundreds of thousands of women to obtain illegal abortions (and it drove the price of abortions way up). However, some women who need abortions for health reasons don’t have the money or connections to obtain an illegal abortion, or cannot safely have an abortion outside of a legal hospital setting. The result, of course, is that women are hurt.

The article contains other examples. One HIV positive woman, Maria, “obtained written confirmation from a specialist that pregnancy presented a danger to her health.” But hospital after hospital refused to treat her, some explaining that they simply would not perform an abortion under any circumstance.

This is by no means a problem unique to Poland. In the United States, the so-called “Abortion Non-Discrimination Act”, if it becomes law, allows health professionals (not just doctors, but also nurses, insurance agents, pharmacists, etc) to refuse to perform abortions, regardless of the consequences to the woman’s life or health. XX, Feministing and The Well-Timed Period (here and here) have more about this law. From The Well-Timed Period:

Rivka at Respectful of Otters tells the horrifying story of an American whose preborn baby died in utero at 19 weeks. The safest procedure for removing the baby’s corpse - dilation and extraction - has been widely under attack by pro-lifers who call this and other procedures “partial birth abortion.”

And keep in mind - that’s just the result of political and social pressure on doctors not to perform “partial birth” procedures. If the ban actually became law, obtaining even a legal D&X abortion will become all but impossible.

To be clear - nothing about the “partial-birth” abortion ban makes it illegal to remove an already-dead fetus using the D&X procedure. But it doesn’t matter, because the effect of the ban (if it ever becomes good law) will be to make the procedure unavailable even in cases where a D&X is undeniably legal and desperately needed.

One last thought about the case of the Polish woman blinded because she could not obtain an abortion. At least in Poland, it’s in theory (if not in practice) legal for a woman to have an abortion to save herself from going blind. In the USA, pro-lifers are opposed to health exemptions, so if they had their way not even preventing blindness would be a good enough reason to get an abortion.

From CNN.com:

In the end, it’s up to the Supreme Court. With the current Court line-up, there’s almost no question that the PBA ban is unconstitutional. The danger is, if Bush wins re-election, he might get a chance to replace one of the five justices who previously (in the Stenberg case) ruled that a previous version of the PBA ban was unconstitutional.

In the meantime, however, this is good news.

Judge Kopf’s opinion (.pdf file) is an amazing 474 pages long; I hope you’ll understand that I haven’t read the whole thing yet. I do like Judge Kopf’s apology, from his introduction:

Judge Kopf provides an outstandingly comprehensive summary of the medical evidence. In the end, it comes down to this:

The ruling was not a total win for pro-choicers; pro-lifers should take some comfort in particular from Judge Kopf’s statement that his “decision does not invalidate the ban where the fetus is indisputably viable.”

Furthermore, Kopf ruled that - if the government’s “specific intent” interpretation of the PBA ban (which says that doctors can only be prosecuted if they specifically intend to perform a “partial birth” abortion before they began, but that the “partial birth” procedure is still legal if it wasn’t the “original intent” but becomes medically necessary partway through the procedure) holds water - then the PBA isn’t unconstitutionally vague.

In other words, contrary to what pro-choicers have argued, Judge Kipf ruled that there is a way to interpret the PBA ban that is not so vague as to be unconstitutional.

However, the interpretation that protects the PBA ban from the “unconstitutionally vague” problem, has the side effect of making the ban very hard to enforce. As Judge Kopf pointed out in a footnote, “Mr. Ashcroft’s [interpretation] makes proof that the Act has been violated extremely difficult.” So if the PBA ban isn’t unconstitutionally vague, then it’s almost unenforceable.

According to this decision, anyway. But in the end, it comes down to what the Supreme Court thinks. Which means, unfortunately, that it probably comes down to who wins the 2004 presidential election.

Other “Alas” posts on the “partial-birth” abortion ban can be read here.

Judge Casey’s ruling in last week’s “partial-birth” ban case is now online (pdf file).

Although the ruling is a victory for the pro-choice side - as I wrote before, if the pro-lifers can’t win this case in Judge Casey’s court, they probably can’t win it anywhere - Casey also steered testimony to emphasize the alleged cruelty and the undisputed grossness of the D&X procedure. By doing that, he created a trial record that will be useful to any future Supreme Court that wants to overturn Stenberg. (Stenberg is the Supreme Court decision which ruled that PBA bans that are overbroad, or that lack an exemption to protect the woman’s health, are unconstitutional).

Judge Casey, who didn’t hide his disgust at the D&X abortion procedure, ruled against the PBA ban based on a single issue, the lack of a health exemption:

The pro-lifers in Congress had attempted to get around Stenberg with a duplicitous “finding of fact” that “partial-birth” abortions are never necessary. Judge Casey dismissed Congress’ findings, quoting the same Clarence Thomas argument that I quoted months ago.

Although Judge Casey was not required to rule on the other legal issues in this case - if the PBA ban creates an undue burden on women, and if the definition of PBAs in the ban is overly broad - he could have if he wanted to. By not addressing the overbroadness issue, Casey was able to turn the trial into a show trial against the D&X abortion procedure - even though it’s not clear that the D&X procedure is what the PBA ban actually bans. (The court in California ruled that the definition was both too broad and too vague.) If a future Supreme Court overturns Stenberg, I expect they’ll do it drawing heavily on the testimony Casey brought forth in this trial.

Via Ms Musings, a Federal Judge in New York has stuck down congress’ “partial-birth” abortion ban. If you’d like a short, intelligent summary of the case, I recommend Kaisernetworks’s report.

This is the second of three lawsuits over the PBA ban to be decided (the first, in San Francisco, was also a pro-choice victory). The third lawsuit, in Nebraska, is also likely to find that the PBA ban is unconstitutional.

The loss in New York is significant to pro-lifers because New York’s Judge Casey was clearly sympathetic to pro-life arguments, and made no effort to hide his disgust at the so-called PBA procedure. (According to the Times, Judge Casey earlier today referred to the procedure as “gruesome, brutal, barbaric and uncivilized.”). If the pro-lifers can’t defend a PBA ban successfully in Judge Casey’s courtroom, it’s unlikely they can defend it at all.

Judge Casey was, however, too honest to overlook the fact that the PBA ban clearly is unconstitutional according to the Supreme Court’s Stenberg v Carhart decision.

However, that could change if Bush wins the 2004 election and gets a chance to replace O’Connor, Stevens, Breyer, Ginsburg, or Souter on the Supreme Court. If that happens, the Court will probably overturn their Stenberg v Carhart decision and find PBA bans to be constitutional.

FederalAbortionBan.org has more information on all three cases. I haven’t yet found a link to the text of Judge Casey’s opinion, but when (if) I do, I’ll update this post with the link.

What one Bush official said about the judge’s ruling in the Partial-Birth Abortion Ban case:

In fact, the Bush administration’s lawyers begged this judge to legislate from the bench. According to the judge’s ruling (p. 30 - pdf file), the law written by congress was too broad to be constitutional, so the administration’s lawyers asked Judge Hamilton to “narrow the construction of the statute to eliminate any doubts about the Act’s unconstitutionality.” The judge quite properly refused to do so, since her job is to rule on the law, not to rewrite it.

So first they beg a judge to legislate from the bench. Then, when she refuses to do it, they turn around and criticize her for legislating from the bench (which she didn’t do). Lovely people, these Bush folks.

Eugene Volokh links to a Jeff Jacoby column about how reporters discuss parital-birth abortion. According to Jacoby (who quotes several examples), reporters often say things like

According to Jacoby, this is problematic because reporters don’t do similar things with phrases like “the right to choose”:

To me, this seems to miss the point.

Typical news readers, in the context of an article about abortion, are not likely to misunderstand the term “right to choice” - or, for that matter, the term “right to life” (which, oddly enough, Jacoby doesn’t object to). These partisan terms have entered the public consciousness, and although they may not be literally accurate, they are well understood.

I doubt that the typical reader - or, for that matter, the typical reporter - has a clear understanding of what “partial birth abortion” means. How could they? The meaning of “partial birth abortion” changes in important ways depending on context. In reading media reports and the law, I’ve noticed three distinct, yet frequently used, definitions of “partial birth abortion”:

First definition: For many who oppose “partial birth abortion” - including many newspaper editorials and politicians - partial-birth abortion refers to a late-term abortion performed on a fetus old enough to be viable. As some ban proponants argue, if not for the fact that the “baby” is killed partway through the procedure, there would be no distinction between a partial-birth abortion and a birth. (”Partial-birth abortion is a barbaric procedure which literally kills a baby that is completely delivered except for the head,” according to Wendy Wright of Concerned Women for America). This is presumably the meaning Patrick Moynihan had in mind when he called partial birth abortion “as close to infanticide as anything I have come upon.”

Second definition: Both pro-choicers and pro-lifers sometimes suggest that partial-birth abortion is the same as “intact dilation and extraction,” or “intact D&X,” which is also sometimes called “intact dilation and evacuation.” The Newsday article Jacoby quotes also suggests that the terms are interchangeable. However, most intact D&Xs are performed in the second trimester, before the fetus is viable - which contradicts with the first definition of “partial birth abortion.”

Third definition: Congress defined “Partial birth abortion” in the language of the partial-birth abortion ban. Congress’ definition contradicts with both of the previous definitions I’ve described. It is not in any way limited to late-term abortion or post-viability abortions, which contradicts with the first definition. Furthermore, parts of Congress’ definition make it clear that they are banning many procedures besides “intact D&X”; for instance, Congress’ definition bans some “head-first presentation” abortions, whereas according to medical definitions intact D&X abortions are always feet-first.

The point is, there is legitimate, substantial controversy over what the term “partial birth abortion” refers to. It’s appropriate for reporters to make that lack of agreement clear, not because they are partisan, but because doing so gives readers a more accurate understanding of the issue. In contrast, there is no serious controversy over what terms like “right to choose” or “right to life” mean, nor is there a serious gulf between what they mean and what readers think they mean. Demanding that all these terms be given identical treatment is ignoring substance in favor of a mindless evenhandedness.

However, while I approve of reporters indicating that “partial birth abortion” is a controversial term, I’m not convinced that current reporting really facilitates a greater understanding of what the term refers to. I’d prefer newspapers to publish context-dependant sidebars. For instance, in articles about a particular law, perhaps the sidebar could explain how “partial birth abortion” is defined in that law in particular, rather than relying on readers to know how the legal definition differs from popular understandings of the term.