A Federal Judge in San Francisco has struck down the “Partial Birth” Abortion Ban, finding that it’s unconstitutional.

This is good news, but it doesn’t end the issue. The case was one of three lawsuits against the PBA ban working their way through the system; it’s also possible that the Supreme Court might decided to consider the ban. Plus, there’s the appeals court, if I understand things correctly.

As I had predicted, the PBA ban was found to be unconstitutional both for vague language and for not having an exception to preserve a woman’s health. In addition, it’s unconstitutional for placing an undue burden on women seeking abortions of nonviable fetuses. From the New York Times:

The complete decision - which is 117 pages long - can be read here (.pdf file).

It’s a common belief - one I’ve endorsed in the past - that if Roe v Wade is overturned, the result won’t be the nationwide banning of abortion in the USA, but rather a return to state-by-state rules. So abortion might be outlawed in Alabama, but it would remain legal in New York, and so on.

But lately I’m not so sure. The “Partial Birth” Abortion ban is a nationwide ban, enacted by the federal congress. Yet no one seems to be making a serious case that the PBA ban is unconstitutional because Congress has no authority to pass a nationwide abortion ban. (It does show what hypocrites “federalist” Republicans are, though.)

Since the Republicans in Congress believe they have the right to ban PBAs nationwide, then they must believe they have the right to ban all abortions nationwide - if Roe is overturned.

Of course, Democrats in congress (along with the few moderate Republicans that still exist) would try to block such legislation - so even if Roe is overturned (which could only happen if two of the current pro-Roe justices are replaced, which could only happen if Bush wins re-election, and then only if two pro-Roe justices die or retire), it couldn’t happen unless the Republicans pick up a few more seats in the Senate.

That’s a whole lot of “ifs” and “unlesses”; none of them are unlikely on their own, but it’s probably not likely that all of them will take place. So I’m not saying it’s time to panic. I am saying, however, that the “if Roe is overturned it’ll be up to the states” argument may not be as ironclad as it once appeared.

Just a few links hanging around on my desktop…

• Take the LGF Quiz: Little Green Footballs or late German Fascists?

• I have a reason to live! Only three weeks until the new Stephen Sondheim album is released!
• A New York Times article reports on progress being made in producing remote controls which will be implanted in our brains, so we can control our devices with just our thoughts. Kewl!
• A good Head Heeb post on Israel’s security fence points out that the wall has been good for both Israelis and Palestinians where it has followed the Green Line. (It’s been good for Palestinians because it’s easier to be kept out of Israel by a wall than it is to be kept out of Israel by an occupying army bent on collective punishment).

  My view has always been that the Wall would be a good idea if it weren’t for Israel’s attempt to use it to grab territory beyond the green line. Israel has, of late, been re-routing the Wall to be closer to the green line. So give some credit to Israel; and credit as well to Israel’s critics, without whom Israel would probably have stuck to their original plan.

  Unfortunately, Israel is still planning to hold onto settlements it should let go, which will only prolong the bloodshed.

• Speaking of Israel, a Zogby poll shows that ” in direct opposition to Congressional attitudes, a majority of Americans now believe that Congress should hold Israel accountable for maintaining programs of weapons of mass destruction and for its human rights violations in the Palestinian Territories.” How strange - am I actually part of the mainstream on an issue?
• New to the blogroll: Jewschool.com.
• The US Catholic Bishops website has court transcripts of the three ongoing partial-birth abortion ban trials. The transcripts are in .pdf format, unfortunately (I find html superior for reading), but still interesting reading. Via After Abortion.
• Some testimony has been a setback for the pro-life folks; their own witness admitted under cross-examination that “partial-birth” abortion might include D&E abortions as well as D&X abortions. That kind of over-broad definition was one reason the Supreme Court has found past “partial-birth” abortion bans to be unconstitutional.
• Interesting post by Robert Corr about when in a pregnancy “personhood” can be said to begin. His view is that the same conditions that medicine uses to define death should determine when abortion is acceptable. From a debate Robert links to:
  Until the 20th week … there is no complex cerebral cortex and no major central nervous activity. That is a condition universally regarded as a state of death in adults. An adult human being in such a state cannot really be “killed,” just unplugged. And such an act would not be disrespectful of their individual existence because that existence has already ceased, and only a body remains.

  In the case of a fetus, you’d replace “has already ceased” with “has not yet begun,” but the same general principle applies. I don’t entirely agree with Robert, but it’s very interesting nonetheless. Via Feministe.

• It’s basically just a very long commercial (or, as the Times calls it, an “advertainment”), but I thought The Adventures of Seinfeld and Superman was a hoot.
• Why aren’t politicians flocking to cater to the single woman vote? Ms. Musings has a discussion and many links.
• S.K. Elkins discusses “same-sex marriage and the religion in which I was raised.” Which, in her case, is Reform Judaism. There’s more than I can sum up, and it’s all good, so go read it; but I want to quote this bit in particular:
  So can we please stop framing this as a “religious versus secular” debate now? Please? Because for people who belong to faiths which already recognize same-sex marriage, that whole shtick is not only getting really old, it’s also got to be getting really insulting.

  This is a legal and a constitutional issue. The only way to frame this as a religious issue at all, IMO, would be to frame it as one of religious discrimination.

  And I don’t think that any of us really wants to go that route, do we?

  Actually, I’ve been wondering what would happen if some pro-gay religious organization did sue on those grounds…

• Gabriel Rosenberg has been defending this syllogism:
  1. Legal parents ought to be married.

  2. Gays are legal parents.
  3. therefore, Gays ought to be married.

  Start here and then use the links at the top of the post to move through Gabriel’s discussion; it’s really excellent, closely-reasoned work. The debating technique - accepting a major premise of the opposition, and showing how that premise actually supports Gabriel’s case - is classic.

• On the other hand, if you want to test how strong your stomach is, read this anti-same-sex-marriage piece by sci-fi novelist Orson Scott Card. His hatred - not just for gays, but for left-wingers in general - is not well hidden. I particularly like the bit where he brings up the old “gays are trying to recruit your children!” myth.

It’s always interesting to read After Abortion, if only as a sort of portal into an alternate universe, in which pro-choicers are evil evil subhuman demons who only favor reproductive rights because we just hate babies that much.

This comment by After Abortion reader “Selma” really impressed me for how much it got wrong in so few words. It seems worth blogging about because so many pro-lifers seem to share Selma’s mistakes. Let’s take a look:

This supports the pro-lifer belief that intact D&X is absolutely, positively never needed (and thus, women won’t be hurt if it is banned). Unfortunately, Selma’s quote lies by omission - she’s only quoted part of the paragraph. Here’s the whole paragraph:

Quite a difference those extra two sentences make, don’t you think? In fact, the AMA (which has gone back and forth on the PBA ban) is, in this statement, taking the opposite point of view from Selma. They’re saying that there may be some times when alternative procedures could be riskier for women, and that doctors need to be able to have intact D&X as an option.

Selma is like a movie ad which quotes a reviewer as saying “A great movie!,” when in reality the reviewer wrote “if you want to see a great movie, avoid seeing this stinker.”

Anyhow, Selma goes on:

But pro-choicers don’t have “preferred methods,” in the sense of liking one abortion procedure better or worse than another. That pro-lifers like Selma think pro-choicers “prefer” intact D&X shows how utterly ignorant they are of what pro-choicers think. Pro-choicers don’t favor any single medical procedure; we just favor a process in which women and their doctors have the freedom to choose what’s best for themselves. (Pro-lifers, in contrast, want the choices to be made by the federal government.)

Selma goes on:

Of course, pro-choicers don’t care about women; we’re all unfeeling, evil demons. Boy, Selma’s sure got our number.

But another misconception here is more interesting: Selma believes that “parital-birth abortion” and “D&X” are the same thing. That’s not true. Here’s what intact D&X means, according to the AMA:

That’s what an intact D&X is, according to medical authorities. Compare that to how pro-lifers officially define “partial-birth abortion”:

So an intact D&X, by definition, is feet-first (”footling”). “Partial-birth” abortion, on the other hand, includes head-first deliveries. Why is that important? Because second trimester D&E abortions can be head-first; late-term D&X abortions, in contrast, are never head-first. By sticking in the “head-first” language, pro-lifers are trying to sneak a ban of second trimester D&E abortions (the most common and safest procedure for women who need second-trimester abortions) into law - and claim that they’re just trying to ban late-term D&X abortions. They could never get the votes to ban second-trimester D&Es honestly, so they do it by lying instead.

Similarly, the specific way intact D&X abortions kill the fetus - by removing the contents of the skull - isn’t part of the “partial birth abortion” definition. Instead, “parital birth abortions” forbid any “overt act” that would kill the fetus. Again, by being vague, the pro-lifers get to pass a ban that would in fact apply to many different abortion procedures, but they claim they’re only after D&X.

Finally, the medical definition of intact D&X specifically distinguishes D&X from D&E abortions. Of course, the partial birth ban doesn’t do that, because the entire point is to include D&E abortions.

I don’t think “Selma” is deliberately lying - she’s just parroting what the pro-life leadership says. Nonetheless, it’s a lie to claim that “intact D&X” and “partial-birth” abortions are the same thing.

The Partial-Birth Abortion ban is currently on trial. Or, I should say, on “trials” - there are three separate trials, in New York, Lincoln and San Francisco.

Judge Richard Casey of the New York trial is making headlines for his extremely biased and pro-life questioning of doctors. The mainstream news coverage is pretty restrained; if you want to hear the disgusting details, you have to visit pro-life news sources, whose unending appitite for gore has them delighted with Judge Casey. (For an example, check out this post at After Abortion, reprinting some pro-life reporter’s “trial notebook.”)

Well, fair is fair - after all, some of the other judges seemed biased towards the pro-choice side. Whatever.

Whatever the lower courts decide, the Supreme Court will definitely find the PBA to be unconstitutional. That’s the current Supreme Court, though. It seems to me that pro-lifers are hoping that by the time the Supreme Court examines the PBA ban, they’ll be dealing with a different Court.

So what’s important for the future of the PBA ban is not what’s going on in the courts, but what goes on in the 2004 election. Here are the options:

1. George Bush is elected, and gets a chance to replace one of the “anti-PBA five” (Ginsberg, O’Connor, Stevens, Breyer, and Souter) with a pro-life justice before the PBA ban comes to trial. In this case, the PBA ban is constitutional.

2. George Bush is elected, but the PBA ban comes to trial before he gets a chance to replace any of the “anti-PBA five.” In this case, the PBA ban will be found unconstitutional - but only for the time being, because congress will pass a new PBA ban as soon as the Supreme Court lineup does change.
3. George Bush is elected, but his appointment to the Supreme Court fails to be anti-abortion enough (this is what happened to Bush Sr, with both Kennedy and Souter), and the PBA ban continues to be unconstitutional.
4. Kerry is elected, in which case the PBA ban will continue to be unconstitutional.

So that’s why I’ll be holding my nose and voting for John Kerry.

Lis at Riba Rambles has highlighted an interesting news story. The case is National Abortion Federation vs. John Ashcroft, in which the NAF is trying to get the so-called “partial birth” abortion ban overturned. One of the parties suing is a doctor who performs late-term abortions.

Ashcroft’s lawyers tried to subpheona the medical records of the doctor’s patients from the hospital. Although they agreed to let the hospital strike off the patients’ names, they reserved the right to try and get further identifying information from the hospital later.

Happily, the court slapped the attempt down - Lis has quotes from the ruling. Still, it’s scarey stuff, and yet another example of how little Ashcroft seems to understand the notion of “privacy.” Especially, of course, as applied to pregnant women.

Update Will Baude responds:

I think Will overestimates how literal my readers are. I trust that “Alas, a Blog” readers, being smartish sorts, realize that a smart, accomplished politician like Ashcroft comprehends arguments that he disagrees with. They would therefore not take my words literally.

What if I had said something along the lines of Will’s suggestion? “Ashcroft understands privacy perfectly well, of course, while disagreeing with me on what is private.” That version would better suit literal-minded readers, but would have failed to effectively communicate my disdain for Ashcroft and the (in my opinion) anti-women views he represents.

My original version isn’t as literal, but better communicates my attitude.

Of course, if I were engaged in direct debate with Mr. Ashcroft, that would be a reason to choose the more polite version. But I think expressing disdain (and in this case, heartfelt disdain) for the views of public figures is perfectly reasonable rhetoric.

SECOND UPDATE: This cracked me up. My, this post has generated some odd criticisms. Anyhow, point well taken; I’ve made a correction.

I’m a bit late posting this, but what the heck. It’s a good op-ed from the Boston Globe describing how the PBA ban President Bush just signed would, if it became law, ban not just late-term abortions (as pro-lifers dishonestly claimed) but second-trimester abortions as well.

Carhart is exaggerating in the last sentence - but he’s certainly right that the PBA ban, as written, applies to much more than late-term abortions. Pro-lifers who claim otherwise are either liars or, more often, have been duped by their leadership.

Fortunately, the ban is unconstitutional, and several lower courts have ruled that it cannot be carried out. Unfortunately, the bill (or future bills like it) could be made constitutional with just one Bush appointment to the Supreme Court.

(Via The Light of Reason)

(My other posts on partial-birth abortion.)

Bush signs the “partial birth” abortion ban. Via Nathan Newman.

Sebastian Holsclaw’s new blog has a couple of entries on abortion; one addressing his own pro-life side in refreshingly reasonable terms, and one addressing the pro-choice side. The comments feature some passionate, but polite, debate. (The poster “Fredo” is doing an admirable job holding up the pro-choice side of the debate.)

Sebastian’s message to pro-choicers comes in two parts. First, Sebastian argues that the focus of the abortion debate should be about “the personhood of the fetus.” Fredo, in Sebastian’s comments, and Mithras at Fables of the Reconstruction do a good job responding to this point.

Second, Sebastian argues that the “health” exceptions to late-term abortion bans are abused.

I’m going to answer Sebastian in three parts. First, I’ll show why his argument is based on false premises, and doesn’t hold up. Second, I’ll explain the real-world politics of late-term abortion bans - and why “pro-life” legislators have actually been fighting against late-term abortion bans. Third, I’ll discuss the health exemption to abortion bans.

1. What’s wrong with Sebastian’s logic - bad premise in, bad conclusion out.

Sebastian seems to believe that there is currently a national ban in place on third-trimester abortions, with exceptions to spare the life or health of the mother. This is utterly untrue; there is no such national ban in place.

But what about state-level bans? Many states have some sort of ban on late-term abortions or on the fictional concept known as “partial-birth” abortions. However, nearly all of these bans were effectively rendered unconstitutional by the Supreme Court’s decision in Stenberg v. Carhart. Women needing late-term abortions in the few remaining states whose bans aren’t unconstitutional probably don’t sue to get abortions; it would be much simpler to simply obtain their abortion in another state, one without a ban.

So Sebastian?s argument - which is based on the premise that the US currently bans late-term abortions, and the health exemption to this ban is abused - is totally mistaken. There is no national ban. The few constitutional state-level bans are probably avoided by visiting a different state, not by abusing the health exemption.

2. Why Republicans oppose banning late-term abortions.

So why isn’t there a national ban on late-term abortions?

Because the Republicans don’t want one.

Now, I know you’re thinking I’m nuts. After all, didn’t the Republican-dominated congress just pass a ban on “partial birth” abortions, which the Republican president is expected to sign?

Yes, indeed. But - despite their rhetoric to the contrary - the Republicans in congress know that their ban will almost certainly be found unconstitutional by the Supreme Court. And the funny thing is, the Republicans know perfectly well how to write a constitutional ban on late-term abortions - Sandra Day O’Connor, in her Carhart concurrence, explained very specifically what sort of ban would be constitutional.

O’Connor is the swing vote on this issue on the Court, so her opinion is effectively law. You want to write a constitutional ban on late-term D&X abortions? Sandy’s told you exactly how to do it.

And yet, the Republicans write a ban that does not limit itself to one procedure, and does not contain any health exception. They’ve written a ban, in other words, that’s specifically designed to be rejected by the Supreme Court. What’s up with that?

Here’s another piece of the puzzle. The Republicans in congress don’t want a real ban - but the Democrats do. The Democrats have proposed constitutional bans on late-term D&X abortions again and again, and have been voted down by Republicans every time. It doesn’t matter how the health ban is worded - the Republicans even rejected Dick Durbin’s bill, which would “ban all abortions after a fetus is viable unless two physicians certify that the abortion is necessary to protect the life of the pregnant woman or that she was at risk of grievous injury to her physical health.”

So what’s going on here?

What’s going on is, “partial-birth” abortion is a great issue for Republicans, and they don’t want it to go away. It lets Republican Congresscritters show their pro-life base that they’re fighting the good fight and trying to save babies. It lets them portray Democrats who favor banning late-term abortions, but who want a health exemption, as extremist baby-killers. And by concentrating their fire on “partial-birth” abortions, the Republicans get to avoid dealing with the controversial and electorially dangerous issue of first-trimester abortions.

You see, as long as the fight against “partial birth” abortion consumes pro-life attention, Republican politicians get a pass from proposing any serious legislation attacking first-trimester abortion rights in the states. And that’s very important to the GOP, because a serious fight against first-trimester abortions would be terrible for the Republicans; it would not only galvanize Democrats, it would create a serious split in the Republican party between pro-life and pro-choice Republicans.

The last thing the Republicans want is a multi-year legislative fight over first-trimester abortions. And as long as they can keep the “partial birth” abortion debate alive, they can avoid that fight - and as an added bonus, they get to look like heroes to pro-life voters.

That’s why the Republicans have never supported a constitutional late-term D&X ban - and that’s why the Democrats keep on proposing such bans, and would love to get one passed.

3. The truth about the health exemption in abortion bans.

Sebastian’s concerns about abuse of the health ban are nonsense; they’re the usual lies fed to gullible pro-lifers by cynical Republicans. For instance, Sebastian complains that the “health part of the clause has been so broadly interpreted as to allow ANY mental distress of ANY intensity to be a ‘threat to the health’ of the mother.” But if Sebastian had read the actual text of Democratic proposals like Dick Durbin’s, he would know that Republicans reject all health exemptions, no matter how tightly worded - even ones that specifically restrict the exemption to only physical health problems.

The truth is, there is no ban on “partial birth” abortions in the United States, and hence no health exemption to be abused. But if Republicans were sincere in their concerns, then the legitimate and responsible solution is to pass a constitutional ban on late-term D&X abortions, and then to pass further legislation to close inappropriate loopholes in the health exemption when (and if) they show up.

That?s the responsible way to deal with the loophole problem (if it even exists - I’ve seen no persuasive evidence that it does).

That’s what the Republican-controlled legislature and executive would do if they really wanted to ban late-term D&X abortions.

But of course, that’s not what they want. They want to keep the partial-birth issue alive forever; actually banning anything would be counter-productive.

* * *

A final note: it may be fair to oppose particular, badly worded health exemptions; but it is irresponsible and immoral to oppose all health exemptions, regardless of the wording.

Sebastian, face reality - not every health exemption claimed is bogus. In the real world, pregnancies sometimes go wrong and are dangerous. Please address this question directly: Are you seriously prepared to deny women with genuine health needs the medical help they need to avoid crippling pain, internal damage, and infertility? Because that’s what the legislation you favor would do to at least some women, if it were constitutional (which, fortunately, it probably is not).

Pro-lifers will never escape their reputation as woman-hating fanatics as long as they?d rather see a woman crippled and infertile than permit her to get the medical help she needs for health reasons. And that’s as it should be - opposing the health exemption for women who need it, on the grounds of speculative abuses, is barbaric.

Sara at Diotima, a pro-life conservative who is of two minds about the partial birth abortion (PBA) ban, writes:

1) I think it’s perfectly reasonable of Sara to say that, since federalism is a non-starter in real-life politics, it’s unreasonable to expect pro-lifers to refrain from lobbying for laws they want at a federal level. However, it seems to me that she should then be willing to apply this rational not just to pro-lifers, but to all groups and causes seeking to make laws at the federal level.

In other words, if conservatives want to say “it’s unreasonable to expect people seeking to make important real-world changes to abide by the idea of Federalism,” then I can see their point. But to be intellectually consistent, they must this rule of thumb across the board - including admitting that liberals are justified in ignoring Federalism by the same logic - and I wonder if conservatives are willing to do that.

2) Do “pro-lifer activists actually want to stop abortions?” If so, why support the PBA ban, which (according to the way pro-life activists describe it) won’t actually stop even one abortion; it’ll just change which procedure is used. (Indeed, some pro-lifers actually oppose the PBA ban for this reason).

Either the pro-lifers believe what they say - in which case, they think the PBA ban won’t actually stop abortions, and they must have some goal other than stopping abortions. Or the pro-lifers favor the PBA ban because it will stop abortions - in which case, they must believe what pro-choicers have been saying for years, that the PBA ban is “stealth” legislation written to sneak a fairly broad abortion ban into law, and the pretense of banning only one procedure is a deception.

Okay, to be fair, there are other possibilities besides those two extremes; no doubt reasonable conservatives will seek out the middle ground. Still, there is a contradiction inherant in pro-life support of a ban that will, according to the pro-lifers, not reduce abortions at all.

As a pre-Supreme Court Clarence Thomas once argued (pdf file):

Thomas’ argument gets at why the Supreme Court will not let the pro-lifers get away with their loophole (see my post “Constitutionality and the Partial- Birth Abortion Ban, part two” - just scroll two posts down - if you don’t know what I’m referring to). The Partial Birth Abortion Ban is a direct assault on the power of the Supreme Court to limit legislative power; in order to accept the pro-lifer’s argument, the Court would have to rule that Congress can overturn any Court ruling simply by generating an appropriate set of “factual” findings.

In fact, the Supreme Court faced this issue fairly recently; when Congress passed the Violence Against Women Act, they included in the law detailed findings intended to show the Court that VAWA was related to interstate commerce. The Court didn’t feel at all obliged to defer to Congress’ findings, and struck down VAWA for being insufficiently related to interstate commerce.

So does that mean that pro-choicers can relax, secure that the Supreme Court will overturn the federal PBA ban, as it did Nebraska’s? I don’t think so. I think it’s likely that the Court in its current form would overturn the ban, but the Court in its current form will never hear the case. By the time the Court hears this case, Justice O’Connor’s seat on the Court will have been filled by a Bush appointee, and that potentially changes everything.

UPDATE: In retrospect, the last paragraph is an overstatement. I should have written that “the Court in its current form might not hear the case”; it may be that O’Connor will not retire before hearing this case. (Update written in April 2004)

Over at National Review’s The Corner, Ramesh Ponnuru and Jonathan Adler have been debating the Partial Birth Abortion Ban (this is a reprise of a similar, but better, debate they had a few months ago). Adler argues that Congress has no power to ban partial-birth abortions, because congress is constitutionally limited to regulating interstate commerce (you can read Adler’s argument in more detail here).

Adler is obviously correct, if you accept the correctness of the Supreme Court’s recent string of federalist decisions. It’ll be interesting to see how the conservatives on the Court deal with this issue; will their commitment to federalism outweigh their commitment to pro-life?

(Curiously enough, Adler doesn’t discuss what seems to me to be a potentially valid argument relating most PBAs to interstate commerce - as I understand it, nationally, only a handful of doctors perform third-trimester abortions. To have a third-trimester abortion, most patients have to travel over state lines to a state where one of those few doctors practices. But perhaps that’s not relevant - I’ve never totally grokked the conservative interpretation of the commerce clause).

Ponnuru, in contrast, argues that Congress can ban all abortions (not just partial-birth abortions) under the authority of the 14th amendment.

I don’t see how Ponnuru could be correct. Months ago, he argued that “the plain meaning of the relevant terms is that all persons are to be protected.” But the 14th Amendment begins with the words “All persons born or naturalized in the United States….”

I can’t imagine any reasonable argument that “the plain meaning” of the phrase “all persons born” is that it covers unborn fetuses. The 14th clearly doesn’t apply to people not yet born - at least, not if you pay attention to the words it uses. (Adler pointed this out, but if Ponnuru responded I didn’t see it).

Today, Ponnuru also argued that “In what serious sense does the replacement of a regime in which the federal government’s judicial branch says partial-birth abortion may not be banned by one in which the federal government says it is banned amount to a centralization of political power?”

But the Supreme Court never ruled that partial birth abortion “may not be banned” - they only said there were limits on how it could be banned. As Sandra Day O’Connor (who had the deciding vote on this question) wrote in her Carhart concurrence: “a ban on partial- birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view.”

The problem is, most pro-lifers have no interest in a narrow, reasonable ban of D&X - such a ban has been proposed by Democrats and voted down by Republicans time and again. Pro-lifers have been well served by “partial birth” bans which get struck down (by the courts or by Clinton’s veto); keeping the issue alive let them pound Democrats with the issue, and assured their pro-life base that they were fighting the good fight.

Had Republicans simply passed a D&X ban into law - as they could have easily done at any point over the last decade, in the federal congress and in most states - then their pro-life base would have expected them to take serious steps towards banning abortion itself, instead of just concentrating on “partial-birth” abortions. And the last thing the Republican party wants is to make a direct assault on basic abortion rights – doing so could hurt them in elections.

Returning to my main point, the basic constitutional arguments against “partial-birth” abortion were known even before the Carhart decision - such laws need to be narrowly tailored, and they need to respect women’s 14th amendment rights by including a health exemption. Pro-lifers have freely chosen not to write such laws. But that’s a choice pro-lifers have made on their own, for partisan political reasons - contrary to Ponnuru’s claim, the Supreme Court didn’t make that decision for them.

So, from the point of view of conservative federalism, Congress’ new law - which absolutely forbids any state from allowing “partial-birth” abortions - is far more of an imposition on the states than the Carhart decision, which allowed D&X bans as long as they were narrowly tailored. Any conservative who is serious about federalism should therefore prefer Carhart to a federal partial-birth abortion ban.

Links via Diotima.

A. The problem: The Supreme Court demands a health exemption

In Stenberg v. Carhart, the Supreme Court ruled that “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 plain language, abortion bans need to contain exceptions to protect the health of the mother, or they’re unconstitutional.

But a health exception is a problem for pro-life legislators, because it makes banning an accepted medical procedure ineffective. After all, the main reason a doctor would choose to use a “partial birth” method (however defined) is because she feels that a “partial birth” procedure is, for whatever reason, necessary to preserve the health of her patient. If doctors can use “partial birth” methods to preserve a woman’s health, however, then the decision to have an abortion will, to some extent, be made by a woman and her doctor, rather than by the federal government. That outcome is precisely what pro-life legislators are fighting to avoid.

So how can the pro-lifers ban PBAs, without including that mother’s health provision, and without being overturned by the Supreme Court?

The answer is, they think they’ve found a loophole in the Supreme Court’s logic.

B. The Loophole

What if “partial birth abortion” were unquestionably a danger to women’s health? Then banning PBAs would be an example of “promot[ing] but not endanger[ing] a woman’s health,” fulfilling the Supreme Court’s requirement. If PBAs are never needed to protect women’s health, in any circumstances, then there’s no need for a health exemption.

Many pro-life legislators may believe that’s the case - but regardless of their personal beliefs, they realize that expert medical opinion is split on whether partial birth abortions are necessary to preserve the health of the mother. There are some experts who argue that PBAs are always the wrong choice. But many important experts disagree. For example, the American College of Obstetricians and Gynecologists says the PBA ban is “inappropriate, ill advised, and dangerous.”

So in order to use their loophole in the Supreme Court’s “health exemption,” the congressional pro-lifers have to prove that PBAs are never need to protect a women’s health. But expert opinion is clearly divided. So that means they can’t use their loophole, right?

Wrong. After all, Congress has held so many hearings on this issue, at which hand-selected experts chosen by the Republican majority testified. So in the text of the PBA ban, pro-life legislators attempt to settle the medical question by fiat. Citing congressional hearings, the PBA ban declares that “Partial-birth abortion poses serious risks to the health of a woman undergoing the procedure… a ban on the partial-birth abortion procedure will therefore advance the health interests of pregnant women seeking to terminate a pregnancy.” Since their law cites the pro-lifer’s preferred evidence – and only that evidence - at length, the conclusion is that there is “overwhelming evidence” supporting the pro-life position. (This approach is intellectually bankrupt - any evidence is overwhelming if opposing evidence isn’t even mentioned, let alone considered. But I don’t think being intellectually fair is a major priority of pro-life legislators).

Furthermore, the text of the law includes a legal argument that the Supreme Court has no choice but to defer to Congress’ fact-findings.

So the pro-lifers write a law declaring that - despite what many experts say - PBA is never necessary to protect a woman’s health. Furthermore, they write that the Court must accept the pro-lifer’s version of the facts. Therefore, no health exemption is required. That’s the loophole.

The next post in this series will speculate on whether or not the loophole will work.

The House of Reps has passed the “partial-birth abortion ban.” All that’s required to make this bill a law is for the House and Senate versions to be reconciled (look for the Senate’s statement of support for Roe v Wade to be quietly dropped) and for George Bush to sign off on it.

As I’ve explained in detail in the past, the language of the ban is purposely vague; rather than banning just one procedure (the “D&X” abortion), just during third trimester, this law’s language is designed to apply to a variety of abortion methods throughout the second and third trimesters.

The overbroad language of the PBA ban makes the new law unconstitutional. From Sanda Day O’Connor’s concurrence in Stenberg v. Carhart:

There’s a second way in which the PBA bas is unconstitutional; it lacks an exception to protect the health of the mother. My next post will discuss that.

The “NOW Action Center” sent me an email, which included this item regarding the “partial birth abortion ban”:

I’ve blogged about the partial-birth abortion ban several times before. As I’ve argued in the past, this is a deeply dishonest bill; Republicans have used the ambiguity of the term “partial-birth” to create a bill that could be used to ban many forms of late-term abortion, rather than just the single procedure its proponents claim to be banning.

But NOW’s email goes overboard; as awful as this bill is, it won’t ban most abortion procedures, and it probably won’t ban any first-trimester abortions at all. This bill is bad enough without NOW being more alarmist than necessary (not to mention eroding its own credibility).

Ironically, the letter their webpage provides to send to Congresscritters comes much closer to the truth: “This harmful legislation threatens the health of countless women and will deny many women access to safe and common methods of abortion that are performed after the 12th week of pregnancy. Women need your support in defending their basic human right to safe and appropriate medical care.” Although I’m annoyed at NOW for their inaccuracy, I still used their page to send an email, and I hope most Alas readers will do the same.

…And it would have been cartoon day, too, if I hadn’t been out of town. But here it is, a couple of days late…

(This cartoon will make no sense if you’re not familiar with the classic Monty Python sketch “The Spanish Inquisition.”)

In The Nation, Katha Pollitt recently explained the deal with “partial-birth” abortion bans:

That gets to the heart of the issue - although if you want a more detailed (and, well, gross) description of exactly what this legislation banned, I went over it several weeks ago.

There’s a little debate going on between Avedon Carol and Kevin Drum in Pandagon’s comments section. I can’t resist commenting on Kevin’s last, so very wrong paragraph.

Let’s examine Kevin’s first claim: that there was a PBA ban in 1997 which would have passed if it wasn’t for those dratted liberal extremists.

The Senate voted on two alternatives to the Republican-proposed PBA ban in 1997. The better-known one, proposed by Tom Daschle, would have banned all post-viability abortions except to protect the life or health of the mother. It lost 36-64. 34 Democrats vote for it, 11 voted against it. (Democrats who voted against it included not only “extremist liberals,” but also right-wing Democrats such as Senator Breaux.) And if every Democrat in the Senate had voted for it? Then it still would have lost, 47-53.

The other alternative bill, proposed by Diane Feinstein, was similar, but used broader wording to protect the health of the mother. This proposal was creamed, 28-72. If 100% of Democrats had voted for it, it would have lost 46-54.

So Kevin is mistaken to blame the loss of the 1997 bills on “extremist liberals.” No matter how many “liberals” had favored these bills, they still would have been defeated by a strong Republican majority in the Senate. (And if by some miracle they passed the Senate, they would have had even less chance of getting past the House.)

Second - and more importantly - Kevin argues that if those bills had passed, we would not have a “real ban” today. (Kevin is being a bit hyperbolic; PBAs haven’t been banned yet. But they probably will be, depending on who replaces O’Connor in the Supreme Court.) But even that seems doubtful. The pro-lifers in Congress don’t want to merely ban late-term D&X abortions; if they did, they could have passed their legislation long ago, merely by writing a provision into the legislation making it clear that their bill wasn’t intended to ban pre-viability abortions or D&E abortions.

Instead, Republicans (on the federal level) have refused again and again to put such provisions into their bills. Why? Because their goal isn’t to ban late-term abortions and one abortion procedure; their goal is to use vague, broad language to ban as many abortions as possible.

What would have happened if Daschle or Feinstein’s version had passed? Republicans would have dismissed them as worthless non-bans (that’s what they called the laws at the time), and would have put forward largely the same bill they put forward this year, saying that their bill is a “real” PBA ban. And since “partial birth abortion” isn’t a term with a firm meaning, who could say they’d be wrong?

In short, Kevin - who I respect on many issues - doesn’t know his elbow from a hole in his hat when discussing PBAs. Sorry, Kevin.

One more point - the PBA ban that passed the Senate this year passed because it was supported by most republicans and by centrist democrats. Had the “centrist” democrats who voted for the ban voted against it instead, it would have lost 48-52. So as long as Kevin is casting about for Democrats to blame the PBA ban on….

Continuing to quote from John Swomley’s March 1988 Humanist article. Mr. Swomley’s article gives something you don’t see too often - real-life examples of women who have had “partial birth” abortions, who would be either forbidden from having abortions at all, or who would have to choose more dangerous procedures, if the pro-lifers have their way.

According to pro-lifers, we can’t have a health exemption because “a mother could go to her doctor and say that a baby would interfere with her homework, and the doctor could then list the reason for the abortion as ‘mother’s health endangered.’” By telling each other campfire stories like that, pro-lifers refuse to deal with the reality of the ways their laws, if enacted, will cause grave injury to real life women. Here’s the reality: Women are not the hateful monsters pro-lifers imagine (”I’ve got to do homework - guess I’d better kill my baby!”). Women’s choices are typically made for good reasons - unlike the decision to block women from getting the medical care they need.

Note that under the terms of the “partial birth” abortion ban the Senate just passed, Maureen’s doctor would legally be forbidden from cutting the umbilical cord, since that would be a “discreet act” killing the fetus. If the “partial birth” ban becomes law, the doctor would face a choice of allowing Maureen to be badly injured, or committing an act which could cause the doctor to lose her/his medical license and spend up to two years in prison.

Out of millions of American women, it’s possible that one or two exist who might have a late-term abortion for an entirely trivial reason. But that’s no reason to block off 100% of American women from medical help they may someday need to prevent real danger to their health and well-being. There is absolutely no excuse for the pro-life opposition to health exemptions to abortion bans.

This post, bending “fair usage” to the limit, quotes extensively from a Humanist article that is not (so far as I can tell) available online. It’s from the March 1998 issue, and written by John M. Swomley, professor emeritus of social ethics at St. Paul School of Theology.)

As I’ve pointed out before, it’s not clear that what the so-called “partial birth” abortion law bans is late-term, D&X abortions. What the language describes is not necessarily late-term, and could include many types of abortion other than D&X.

Nonetheless, even if the ban was limited to only D&X abortions, I’d still oppose it unless it made an exception to protect the health of the mother. So why are D&X abortions sometimes better than the alternatives? This passage from Swomley’s article is virtually a FAQ answering that question.

Compare this to the pro-life lie that “partial-birth abortions are never elected for medical reasons, but rather convenience.”

It’s true that women can get abortions even without using D&X. But in some circumstances, other types of abortions risk injuring the mother, and eliminating her ability to bear children in the future. The best way to protect women’s health and lives is to give women and their doctors the freedom to choose what is best, based on the individual needs of each patient.

Unsurprisingly, the “partial-birth abortion ban” passed the Senate 64-33. I’ve blogged some about this bill earlier this week, and I plan another post or two on the subject this weekend.

In the meanwhile, a few links you can check out:

• Who do you trust to make your medical decisions; Senator Rick Santorum or the American College of Obstetricians and Gynecologists?

• In a similar vein, this LA Times article focuses on doctors’ objections to the ban. (Via How Appealing.)
• Check to see how your senators voted. Update: Via Tom Tomorrow, check out the list of Democrats who voted for the PBA ban.
• Jesus’ General has a proposal for protecting fetuses once and for all: “it’s time to arm Fetus-Americans. It’s the only way we’ll ever be able to guarantee their safety.”

So what happens next? The ban goes to the House, which will pass it, and then it’ll be signed into law by Bush. Then someone sues and we all wait to see what the Supreme Court makes of it.