Putting Roe to the test

February 22, 2006

The Supreme Court announced yesterday that it would hear a case challenging the constitutionality of a 2003 federal ban on the procedure that critics call “partial birth” abortion. The WaPo described the case, Gonzales v. Carhart, as one that sets the stage for the high court’s “most significant ruling on abortion rights in almost 15 years.”

I think that’s true for a variety of reasons, not the least of which is the last time the court heard an abortion case, Sandra Day O’Connor helped shape a ruling that said any law restricting abortion restriction had to include an exemption for a woman’s health. The 2003 law does not. And, of course, Samuel Alito is now sitting in O’Connor’s chair.

But an even more direct challenge to the Roe precedent may be right around the corner.

Lawmakers here are preparing to vote on a bill that would outlaw nearly all abortions in South Dakota, a measure that could become the most sweeping ban approved by any state in more than a decade, those on both sides of the abortion debate say.

If the bill passes a narrowly divided Senate in a vote expected on Wednesday, and is signed by Gov. Michael Rounds, a Republican who opposes abortion, advocates of abortion rights have pledged to challenge it in court immediately — and that is precisely what the bill’s supporters have in mind.

Opponents of abortion rights in South Dakota know that this bill conflicts with Supreme Court precedent, but they’re ready to move now that Roberts and Alito are on the bench. The sponsor of the bill, State Representative Roger Hunt (R), said, “I’m convinced that the timing is right for this.”

Is it? These South Dakotans are making a series of assumptions, including the notions that 85-year-old Justice John Paul Stevens will soon step down and that their case will reach the Supreme Court before any other changes are made. Indeed, Americans United for Life and the South Dakota Right to Life chapter both expressed concerns that this is risky — especially with five pro-Roe votes sitting on the Court right now.

But the bill is moving forward anyway. It’s worth keeping an eye on.

Personally, I see the Court in the Carhart case holding the ban unconstitutional (upholding the lower court decision??). I may be wrong (or confused), but the primary issue in the case, lack of an exception for life/health of the mother, is not something which these folks will want to be known for as “undoing.” That would upset many folks, including many pro-lifers. I would venture to guess that most pro-lifers understand and probably support the need for this type of exception–especially as the Bible, in every version I have seen, clearly values already born individuals over those that aren’t born yet. Now, I know that these folks are entirely unpredictable, but it would seem to make more “sense” especially from the perspective of Alito and Roberts, if they voted to uphold the lower court and support an exception for the life/health of the mother–they can then claim “see, we are reasonable and not beholden to the religious right,” and then use that when they decide a case that deals with the abortion issue directly–“a ban is fine, as long as there is an exception for the life/health of the mother.”

  • The 2003 law has no health exception because the authors CLAIM that there is no benefit to the mother to having this particular procedure.

    Considering how grotesque it is, that might be a winning argument.

    I just wish the law refered to the procedure as intact extraction and dialation, and not partial birth. They ought to use the medical term.

    Of course, what the law’s authors are arguing is that it is better to chop up a fetus inside the womb and pull out the parts then to remove most of the fetus and just collapse the skull to get the last of fetus out. Seems that latter procedure would require less cleanup and cause fewer complications.

    It does all make one want to gag.

  • This may be too cynical a case even for Roberts and Alito – and perhaps even for some who voted the anti-choice position last time the late-term law was in front of them. Part of it is a matter of pride of role in the system. The Sup Ct – regardless of how divided – said there MUST be an exception for health of the mother. Nebraska (and others) outright defied that opinion and ran the exact same law back up the flagpole, making a legislative finding that the exception was not needed because the procedure was never necessary to protect the mother’s health.

    First, if respect for precedent means anything, I would think this case is a loser for the radical right.

    Second, at some point doesn’t even Scalia have to sort of feel “listen you impetuous pricks, we said no once and we are the Supreme Fucking Court, so don’t even think about disobeying”?

  • This is the issue we’ve all been waiting for. I remember in the aftermath of the Laci Peterson case, a measure was passed defining a human to be alive starting at conception. At the time, the reasoning given was so that if a pregnant woman is murderd, the killer could also be charged with the murder of the unborn child. It also seemed like a backdoor to Roe v Wade. That thought was scarey enough before Roberts and Alito were on the court.

    I always find it interesting how things are named. We have pro-life and pro-choice. Pro-lifers don’t want to be percieved as anti-choice, and I’ve never met anyone who could be decribed as ‘anti-life’. Calling the procedure ‘partial birth abortion’ as, opposed to the medical terms dialation and extraction procedure or intrauterine cranial decompression, conjures up all sorts of nasty imagery as well as inciting people’s misplaced sense of morality. The semantics become a way of manipulating people.

    Another point that I wanted to make is I don’t think we really need to make a law about this. The d & x procedure is rare in the US. Most women have an abortion during the 1st trimester. Dialation and extraction is used only in severe cases where the woman’s health becomes an issue, the fetus is already dead, or the fetus is badly deformed and/or suffering from a serious genetic defect, which are often undetectable until late in the 2nd trimester.

    My last point is that abortion never has and never will be used as a form of birth control. No woman ever says oh well goes lightly into the clinic. It is a decision that is made after a lot of fact gathering and soul searching. Options are weighed and the major factor becomes what kind of life can I give to my child? It is a decision no one makes lightly. The normal 1st trimester abortion procedure is unpleasant enough. I cannot imagine the emotional turmoil of carrying a child for 5 months or more and then going through a d&x procedure.

  • The right has got two spanking new justices on SCOTUS, and they want to take them out for a test drive. Even if they don’t win the case, this helps Bush with his base as it looks like progress to them (which it is). In fact a loss is better than a win here, as it keeps the issue on the burner without generating the backlash that’ll come from actually overturning Roe, letting them continue to benefit from solid winger support without any downside.

    Also recall that Kennedy was one of the five lawless justices in Bush v. Gore. There’ll be tremendous pressure on him to switch, and he’s shown that he’ll vote for a totally partisan result when the chips are down. Bottom line is I wouldn’t count on Roe surviving this onslaught.

  • without generating the backlash that’ll come from actually overturning Roe, letting them continue to benefit from solid winger support without any downside.- Jim Bob

    The republican coalition of right wing christians and neo-cons only works with the public when the real implications of their policies have not yet come to view… but the reckoning is near and so are elections.

  • Hey, let ’em overturn it! Then maybe then all these bible thumping Concerned Women of America will wake up and finally smell the coffee – their rights are being chipped away. No concern here – NY and gay.

  • “…but the reckoning is near and so are elections.” — Kali

    Yes, but will the elections be fair? Remember Diabold in Ohio? Harris in Florida?

    Will there ever be another fair election in the U.S. ??????

  • Question

    Why does the woman always have the “right to chose”? I do not ask this question in the context of giving the father the right to make a mother carry full term against her wishes; but why does the father not have the equal right to “abort” his responsibilities to a newborn he does not want? Why does he have to pay support for 18+ years if he can show a document declaring his “choice” that the mother abort the child?

    ARE WOMEN MORE EQUAL THEN MEN?

  • bogie

    Because it’s her uterus, not yours. Your “accountability moment” ends when your little soldiers are deployed. If you want to avoid the child support, you need to think about it before then. Unfair? Well, that’s biology. You don’t have to deal with everything from morning sickness to the threat to your health that pregnancy represents. The downside for you is the process is out of your hands much earlier.

  • So the woman has the right to erase an evenings mistake, but the male does not? Why does biology make men less equal than women? I am not advocating, just asking why is one gender more equal than the other?

  • So the woman has the right to erase an evenings mistake, but the male does not?

    Yup. That’s right.

    If you think it’s a raw deal, consider that as a male you don’t have to go through pregnancy or childbirth. Neither is a bowl of cherries. You also don’t have to get up in the middle of the night for nursing.

  • The woman does not have to go through the pregnacy or childbirth either, that is her “choice”. I see your position as inconsistent, why are there “raw deals” re gender equality? Arn’t both genders equal? Again just asking I am not advocating, as stated above I think the argument is inconsistent with the notion that the sexes are equal. There should be no “raw deals” as a result of biology, if there is true equality.

  • I heard that it passed in South Dakota this afternoon.
    We will see what devolpes from here. Not good for personal rights.

  • bogie, i feel fairly safe saying that part of the reason is that historically a whole lot of men did, in fact, abort their responsibilities as soon as they heard the “P” word, and did in fact “erase” one evening’s mistakes — and the woman’s phone number, name, and address from anything in his possession. and just moved on to the next one.

    the choice of a physical abortion does not tilt the scale, it re-equalizes it. men were having fun, spreading their gene pool (for better or worse), and moving on leaving the women with the physical, emotional, and financial burden of the child. it was a great racket for a long, long time. but i don’t think i’d look for a lot of sympathy over its demise.

  • Arn’t both genders equal?

    For the third time, no.

    There should be no “raw deals” as a result of biology, if there is true equality.

    One gender gets pregnant, the other doesn’t. I should think this would be clear. Given this basic difference, you aren’t going to get “equality” in any meaningful sense, no matter what you do.

    If you grant the notion that the male gets to decide whether or not there will be an abortion, you are granting him ownership rights to the woman’s uterus. This is a far more egregious violation of equality than just telling the man that his rights to mandate the stopping or continuation the pregnancy end before the woman’s does.

    If you’re disturbed by this, cry me a river. I’ve seen both pregnancy and childbirth. Believe me, pal, you are getting off easy.

  • So there are times when inequality is ok if it protects the status quo?

    Abortion is “affirmative action” for gender equality?

  • So there are times when inequality is ok if it protects the status quo?

    No, but inequality is ok if the only alternatives are even greater inequality.

    Abortion is “affirmative action” for gender equality?

    Sorry, I don’t get the analogy. Abortion is allowable since women are entitled to control their own bodies. Equality doesn’t enter into the question of whether abortion should be allowed or not.

    I know you think you are cleverly reframing abortion into some sort of equality issue. You are failing.

  • I pull the “affirmative action” analogy from Zeitgeist’s second paragraph.

    No, but inequality is ok if the only alternatives are even greater inequality

    Don’t start tilting RIGHT on me! Admitting that things can not always be perfect. Life is not always fair etc………

  • Zeitgeist can defend his/her own posts. However I think this was offered as a reason why you shouldn’t feel oppressed by the situation, not as a primary justification for the policy.

    Don’t start tilting RIGHT on me! Admitting that things can not always be perfect.

    Quel surprise. I don’t fit some fantasy strawman version of a lefty.

  • Will the Bible being proved a hoax have any effect on the outcome of this attempt of overturne RvW? Not if the court does not know about it. There was an old radio program before the radio developed an eye and changed it’s name to television, “It Pays To Be Ignorant.” Those who want to overturne RvW will surely agree. Ignorance is bliss for them in this case.

    Check it out at http://www.hoax-buster.org

  • thanks for the faith, jimBOB, but i’ll never complain if someone has my back.

    bogie, you can’t have it both ways.

    you asserted that abortion was unequal treatment of the genders (the logical converse being that abortion being prohibited would be more “equal.”) i merely showed the fallacy of the position — that when abortion is prohibited, things are not equal.

    now you complain that abortion is being used to equalize between the genders.

    while it might be fun (and easier) to try and win arguments by taking both sides simultaneously, I gotta call BS.

    and what jimBOB said. and trying to be funny, though that seems to interfered with getting my point across.

  • Read again, I asserted that the right of “choice” being only with the female is unequal treatment of the genders, a subtle but real distinction. Liberal call it nuance.

  • Males get choice. Nobody’s forcing them to jump into bed and make whoopie.

    What you are looking for is a situation where the guy takes ownership of the woman’s uterus once he knocks her up. So he can either force her to carry and bear a child, or force her not to.

    And if somebody won’t let the guy do this, it’s “unequal treatment of the genders.”

  • The poet OVID asserted that, as a general rule, women enjoy copulation more than men, which is certainly a nuance to be considered in the context of the inquiry of “bogie”. In addition, there is this fact of human ethology: Women are the CHOOSING SEX; Men are the EXPENDABLE SEX. The human horror of heterosexual rape arises from this ethological assignment of sex roles. The Woman’s right to choose has been violated and the men charged, by biology and by custom, to protect the victim have shirked their responsibility by not behaving as if they were expendable. So the responsibility for conception is mutual, except in instances of rape, but ONLY the woman is allowed second thoughts in order to avoid a generation’s consequence~~ the nurture of the product of affection or lust. Not only does the Gender Feminist argument, allowing abortion solely as the choice of the woman, fail the rigor of scientific analysis, it applies the penalty of involuntary servitude to the male participant, should he have elected to reject the clump of tissue festering inside the designated womb, and, in addition, the male and female are no longer equal before the law as the Founding Document explicitly states {You could look it up.} So the query of “bogie” has been dodged by sophistries and the infinitely flexible redefinition of terms. Now the Liberal recourse to vituperation will probably ensue.

  • I’m with Bogie on this one,although I think he’s playing more the troll in the guise of devil’s advocate, because he raises an important and long-ignored issue.

    The choice has always been the woman’s, although an unprotected sex act is as much a woman’s responsibility as the man’s, and while, yes, it’s her uterus, it’s also the man’s legal responsibility to support the child should she choose to keep it if he doesn’t want to, but he doesn’t get an opportunity legally to exercise his desire to keep a child that his half his if the woman doesn’t want to. The question is, although pregnancy involves a woman’s body, a baby involves a man’s genes too. And as the issue has been considered, the man has no rights, but can have financial responsibilities. Taxation, as it were, without representation.

    Is there a cut and dried solution? No. This came up in my house recently after the local paper published an OpEd on this complication to what is usually seen as a cut and dried issue (either a woman control her body or the state, and the repressive religious authorities that inform it, does). A further complication is that the political aspects of the issue don’t jibe well with the ethical aspects.

    While progressives can debate whether a man should have a say in the woman’s choice, politically this divides us. Progressives have to keep a stalwart front lest those red state bastards, especially in the dying lands that is South Dakota, take them our rights. I would say to men, a club of which I’m a member, we must be the black women of the suffragette movement. They had to backburner the race issues they wanted to fight for to achieve the greater good of suffrage for all women. Right now, men have to backburner their own concerns for the greater issue which is choice. Or as I like to think of it, self-determination.

  • fail the rigor of scientific analysis,

    There was a scientific analysis in all that tripe? All I saw was some wordy nonsense about sex roles that somebody thinks is intrinsic, and which has nothing to do with the issue.

    it applies the penalty of involuntary servitude to the male participant,

    As if being forced to carry a child to term (as South Dakota wants to do) isn’t some sort of imposition.

    the male and female are no longer equal before the law as the Founding Document explicitly states

    It does? Where? A few years back there was an attempt to put in an explicit gender equality amendment, but that attempt failed. The 19th amendmend gives women the vote, but doesn’t say anything about general equality.

    Listen, guys, if you don’t like the terms of responsibility for the results of sexual encounters, you don’t have to play. Or at least you can wear a rubber. Or (better still) make sure you are on the same page with your partner regarding offspring before you get intimate.

    The fact is that in this situation, either we give women sovereignty over their bodies or we don’t. Giving men a legal say in whether or not a pregnancy continues means that we don’t. Don’t like that? Tough.

  • How often does woman have an aborts a pregnancy that the man want to continue? How about women aborting the pregnancy because the man is not willing or able to be a parent? If either partner doesn’t want the pregnancy, shouldn’t that lead to an abortion? Men, yes, women need to take responsibility for sexual encounters and birth control too. Men need to understand that even with birth control, there is always a chance of pregnancy. Should an unplanned pregnancy happen, the ideal case would be that partners need to talk it over as adults and make the best decision for both. Unfortunately, as it is ultimately the woman’s body, the final decision remains hers.

  • Ah, jimBOB, responding with the expected ill founded vilification and flexible redefinitions to suit the prejudices that comfort him when he contemplates his own manifest deficiencies in the darkness of his lost soul, replies to measured discussion with the incantations that pass for argument in the milieu of the LumpenLeft. It all amounts to political superstitions, enforced by the Secular Heresy Hunters Of The LEFT.

  • waumpuscat

    I guess somewhere in that turgid collection of words there was an ad hominem attack. Too bad you couldn’t respond to any of the substance of my posts.

  • jimBOB, wuampuscat/claude was at D-day. We should thank him for the sacrifice he made for the country. Clear it had a devastating impact on him.

  • I read this thread last night but choose not to post because it is an issue which I haven’t given a great deal of thought to recently. I have now had an opportunity to think about the issue. Here is my take.

    I see two issues at stake. The first is a woman right to an abortion which the Supreme Court of the United States has found resides in the Constitution. The state can neither force a woman to carry a pregnancy to term, nor can it force a woman to terminate a pregnancy. The decision is hers and hers alone.

    The second issue is child support. The state can compel those responsible for the birth of a child to support the child until adulthood, because otherwise the burden falls to the state. Historically, the responsibility for child support has fallen to the man, because typically, in the past, the man has had the greater ability to provide the support. Certainly this is something which should be reconsidered today. The responsibility should be divided between the man and the woman in proportion to the abilities to pay support.

    Even before the Supreme Court found that a woman has a right to an abortion, a woman could unilaterally absolve a man of responsibility for child support by placing the baby up for adoption without consultation of the father. The right to abortion has not created this asymmetry. It has only increased the efficiency and decreased the cost of such a unilateral decision.

    Can the asymmetry be eliminated by allowing a father to fore go child support should the mother not choose to abort the fetus? The answer to this question can be found in the fact that the father’s responsibility to pay child support is to the state not to the mother of the child. A father’s threat not to pay child support should a woman choose to carry a pregnancy to term, would amount to his use of the power of the state to coerce her into aborting the fetus. This is not the state’s prerogative; it would be a violation of her fundamental rights.

    The route to a more equitable system is to recognize that both the man and the woman have chosen to have sex and are equally responsible for the child if conception occurs and the pregnancy is carried to term. The degree to which this translates to a financial obligation for each should depend on their relative financial strengths. It should not automatically fall to the father.

    zeitgeist, as a lawyer, what do you think of this layman’s analysis?

  • jimBob,

    The fact is that in this situation, either we give women sovereignty over their bodies or we don’t. Giving men a legal say in whether or not a pregnancy continues means that we don’t. Don’t like that? Tough.

    Caveat: I am not necessarily agreeing with bogie (or Angry Young Man, for that matter), I am staunchly pro-choice and am willing to debate and defend the morality of abortion anytime anywhere.

    That caveat being stated, why are you ignoring Bogie’s question regarding financial support of the child? I didn’t see anywhere in his comments that the father should have a right to force a woman to continue a pregnancy. Only that a father that did not want the child should have the legal right to not be financially responsible.

    Please address that issue, not the strawman that you’ve concocted. In all seriousness, I think there is a surprising lack of dialogue on this aspect of the issue.

  • Edo, I would be careful in assuming that bogie debates in good faith. I don’t believe he was playing devils advocate as was suggested avove.. Rather I think he was laying a trap. You can see how such a trap is sprung here.

  • Rege,

    thanks for your post; it is an excellent example of furthering the dialogue. As for bogie, I’m familiar with the trap he is trying to set. I’ve debated this topic for several years and am confident I can handle him. Having said that, I’m more than happy to ignore him, but not you. ;->

    The state can compel those responsible for the birth of a child to support the child until adulthood, because otherwise the burden falls to the state.

    Why does the burden automatically “fall to the state”? Doesn’t that imply that a woman, de facto, cannot support a child? While that’s undoubtably true in many cases, I’m not sure its universal.

  • I was not in the vicinity of Normandy on D-Day, and I have an enormous respect for those brave men who were there. Far too many of them died so that we could have the Nation that we inhabit. The present squalor of our political transactions, rivaling the Weimar “cattle-trading” and the cynical treason and anitsemitism of the French 3rd Republic, was scarcely what those brave troopers had in mind when they dreamed of HOME back in the Zone Of The Interior (ZI).

  • Why does the burden automatically “fall to the state”? Doesn’t that imply that a woman, de facto, cannot support a child? While that’s undoubtedly true in many cases, I’m not sure its universal.
    Edo, I think you missed my point. Consider the entire paragraph with emphasis added.

    The second issue is child support. The state can compel those responsible for the birth of a child to support the child until adulthood, because otherwise the burden falls to the state. Historically, the responsibility for child support has fallen to the man, because typically, in the past, the man has had the greater ability to provide the support. Certainly this is something which should be reconsidered today. The responsibility should be divided between the man and the woman in proportion to the abilities to pay support.

    I don’t see where you and I disagree.

  • Rege,

    I understand that your position is that the financial burden should be shared according to ability to pay support. That sounds reasonable in theory, but I wonder how practical it is.

    How is it administered? Would a court have to review the support calculations on an annual basis? What if one of the parents wants to go to school full-time? Does that then mean the other parent has to pay fully as the school-attending parent presumably no longer has an ability to pay support? Or do we make the school-attending parent take out more student loans to keep up their end of the financial burden?

    Would the “ability to pay support” be based on the father and/or mother’s parents in the case of minors? Would it be based on wealth or income? Would the calculation vary from state to state? Suppose the mother wanted to give the child up for adoption, but the father did not. Would the mother still have to pay child support? How about the reverse? Would the father? If there is a difference, why?

    As for the morality of such a suggestion, I agree it is stronger moral position than any other.

  • Edo, your questions are all good. We currently have a system for determining child support in the case of divorce, why can’t it be adapted for out of wedlock births? That would leave the issue of minors on the table. Parents of minors can be held responsible for property damage. Therefore it is reasonable to hold them responsible for child support should an underage offspring-male or female- be partner to the birth of a child.

  • Rege,

    fair enough. Luckily, I’ve had no personal experience with divorce or child support cases so I don’t really know if those systems are fair or applicable. Having said that, I’d be willing to grant that they are both.

    • Comments are closed.