"For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows."
Justice Harry Blackmun penned those words in the 1989 abortion-rights case Webster v. Reproductive Health Services. Yesterday, his trepidations were validated. For American women, that chill wind has turned into a storm.
On Wednesday, the Supreme Court of the United States narrowly upheld the Federal Partial Birth Abortion Ban Act in a decision that has been hailed as giving anti-choice activists "the long-awaited victory they expected from a more conservative bench." While this is certainly an anti-choice victory, it isn't a victory for "life," for families, or for women.
What most anti-choice organizations won't tell you is that the court's upholding of the ban will probably not protect even one fetus. It will, however, give pregnant women fewer options, and potentially complicate their health (the ban does not include a health exemption). It interferes with the ability of doctors to choose the best treatment for their patients, and turns them into potential criminals. It limits the grieving options of women whose wanted pregnancies went wrong. And because it does not use medical terminology, opting instead to rely on anti-choice propaganda language coined in the mid-90s, it gives doctors limited information about what is actually outlawed.
What most anti-choice organizations also won't tell you is that so-called "partial birth abortions" are often performed on women whose wanted pregnancies went tragically wrong. The image of the selfish woman, too lazy or irresponsible to end her pregnancy sooner, is what anti-choice activists would prefer we believed the women who have "partial-birth abortions" look like. In fact, the face of the outlawed procedure is more like this. And this. These are women with wanted pregnancies -- women who may have bought a bassinet, picked out a name, decorated a nursery -- when they receive the tragic news that they are carrying a fetus with abnormalities incompatible with life, or a fetus that is already dead or dying. These are also women who face serious health complications like preeclampsia, and women whose bodies and organs will be significantly weakened by birth, but won't be killed -- like the Polish woman who is nearly blind because she was refused access to abortion. Doctors -- and indeed, the American College of Obstetricians and Gynecologists -- say that the banned procedure is often the best choice for preserving the health of the pregnant woman. The court apparently disagrees, and thinks that Congress knows better than the doctors who actually treat pregnant patients.
Of course, Congress has already proven that it doesn't know much, since many of the Act's proclamations are factually incorrect, and, as Justice Ginsburg quoted in her dissent, "all of the government's own witnesses disagreed with many of the specific congressional findings." Even more telling is the fact that "partial-birth abortion" is not a medical term. It was coined by the anti-choice movement (literally by three anti-choice activists sitting in a room together and making up a term), and the procedure described in the Act most closely resembles what medical professionals call "dilation and extraction (D&X)" or "intact dilation and evacuation (intact D&E)," wherein a pregnant woman's cervix is dilated, the fetus's skull is collapsed, and the fetus is removed. Like most surgical procedures, the description is not pretty. But the key difference between the banned procedure and a similar, still legal procedure -- dilation and evacuation -- is that D&X allows the fetus to be removed in one piece, allowing grieving women to hold it and to say goodbye in their own way.
Dilation and extraction abortions are incredibly rare -- they account for less than 1 percent of all abortions in the United States. The majority of abortions performed after 12 weeks fall into the "dilation and evacuation" category -- but because the Act itself bans an ill-defined and highly politicized procedure, doctors worry that the broad language could encompass nearly all abortions after 12 weeks. The Court's majority opinion, though, dismisses the void-for-vagueness complaints, and states that the Act only applies to D&X, and not D&E, procedures.
While that clarification is helpful, it does not change the fact that the language of the Act can still be interpreted otherwise, and may have a chilling effect on the already few and far between doctors who perform abortions after 12 weeks. And the language of the Court's opinion is so paternalistic and condescending towards women (not to mention entirely dismissive of their physical health) that one can't help but notice, as Justice Ginsberg did in her dissent, that the Court's view of women "reflects ancient notions about women's place in the family and under the Constitution ideas that have long since been discredited."
In other words, this case is about more than just abortion -- it's about women's very role in society, and our rights as autonomous human beings.
But perhaps the most important thing about this case is its total disregard for precedent, and its casual destruction of many of the baseline legal standards for abortion legislation. The requirement that anti-abortion laws offer a health exception for pregnant women has been a long-standing one; that is now obliterated. Since 1992, the "undue burden" standard has been the rule, with the Court dictating that the state can restrict abortion so long as the restriction does not place an "undue burden" on the pregnant woman (Planned Parenthood v. Casey). The lack of a health exception was, logically, considered an undue burden -- after all, if disallowing a woman from terminating a pregnancy that threatens her health isn't burdensome, then what is? Yesterday, the Court knocked this down, too. Finally, the Court in Casey drew the legal line at viability, allowing abortion to be outlawed after the point where the fetus could survive out of the womb (with the requisite health and life exceptions, of course); yesterday it destroyed that distinction as well, blurring the line between pre- and post-viability by stating that "[t]he Act appl[ies] both previability and postviability because . . . a fetus is a living organism while within the womb, whether or not it is viable outside the womb."
Now, abortion can potentially be restricted without regard for the pregnant woman's health or the state of fetal development. Not surprisingly, anti-choice groups are newly emboldened -- and they can barely contain their glee at the prospect of proposing laws which will inevitably compromise women's health. As anti-choice activists Leslee Unruh told the Los Angeles Times, "I'm ecstatic ... It's like someone gave me $1 million and told me, 'Leslee, go shopping.' That's how I feel." She further said that she and other anti-choice activists are already plotting the best ways to use the new ruling to curtail abortion rights around the country -- "We're brainstorming and we're having fun," she said.
We will undoubtedly see the outcome of that "fun" in the coming weeks. Anti-choice politicians will be presenting legislation intended to make us less like Belgium (where they enjoy one of the lowest abortion rates in the world, and where the procedure is widely available and very safe) and more like Brazil (where elective abortion is generally illegal, but the abortion rate is higher than most of Western Europe and the United States -- another key difference being that almost 300,000 Brazilian women are hospitalized after clandestine abortions every year. Not all of them survive).
This latest decision is indeed a victory for the "pro-life" movement, precisely because -- like many positions taken by mainstream "pro-life" groups -- it will not save any fetal lives, but it will compromise women's health, and it will punish and harm women in order to score ideological points. As anti-choice organizations propose new legislation, notice how much of it embraces tried-and-true methods of decreasing the abortion rate (birth control, access to medical care, comprehensive sexual health education) and how much of it relies on long-failed punitive measures which have been proven time and again to do little to decrease abortion, but much to make it more dangerous, often at the expense of women's lives (criminalization, blocking access to abortion, limiting contraception access and medical care).
We know that pro-choice policies save lives, and make for healthier women, healthier families, and healthier children. We know what happens when abortion is illegal or highly restricted. We know that anti-choice forces in the United States seek to completely outlaw the procedure, turning women and doctors into criminals. We know that they have little regard for women's lives, and almost no regard for women's physical health. And now our own Supreme Court has given them the green light.
"We're moving beyond putting roadblocks in front of abortions to actually prohibiting them," said Troy Newman, president of Operation Rescue, a national anti-abortion group based in Wichita, Kan. "This swings the door wide open."