Sunday, 29 April 2007

Frontal Assault

Frontal Assault:

Gonzales v. Carhart

and its Portents

Élise R. Hendrick

As Americans of each succeeding generation are rightly told,

the Court cannot buy support for its decisions by spending money

and, except to a minor degree, it cannot independently coerce obedience

to its decrees. The Court’s power lies, rather, in its legitimacy, a product

of substance and perception that shows itself in the people’s acceptance of

the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.

Planned Parenthood of Southeastern Pa. v. Casey,

505 U.S. 833 (1992) (KENNEDY, J., of all people)

The Supreme Court's recent decision in Gonzales v. Carhart is the greatest legal assault yet on a woman's right to terminate her pregnancy. Far from "chipping away" at the right first recognised in Roe v. Wade1, it takes a baseball bat to over three decades of established precedent, precedent that more than one generation of women has relied on in making the most fundamental decisions in their lives. In a thoroughly surreal decision, the all-male majority in Gonzales upheld an act of Congress passed in open defiance of the Court's recent decision in Stenberg v. Carhart2, despite its lack of an exception for the woman's health (which, for decades, had been enough to declare an anti-abortion statute unconstitutional).

I. The Gonzales Decision

When they were not busy endorsing torture or funding a military occupation that has thus far killed over 600,000 people, the Republican-controlled U.S. Congress took some time out to show what the Supreme Court called "respect for human life" by banning a medical procedure that is sometimes essential in order to save a woman's life3. Enacted thus by a Congress for which human life and health are negotiable, and defended by an Attorney General for whom even the Geneva Conventions are "quaint", the federal Partial Birth [sic] Abortion Ban Act came before the Supreme Court.

Enacted in open defiance of the Supreme Court's decision in Stenberg v. Carhart, the federal Partial Birth Abortion [sic] Ban Act of 2003 (18 U.S.C. § 1531) provides a sentence of up to two years for a physician who

(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body
of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother [sic], for the purpose of
performing an overt act that the person knows will kill the partially delivered living fetus; and

(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus4;

While the statute does provide an exception where the procedure described in the statute (known as "intact dilation and evacuation [D&E]" or "dilation and extraction [D&X]") is "necessary to save the life of a mother [sic] whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself5", it contains no such exception for the protection of the woman's health. Thus, a physician who performs a D&X in order to save the patient from permanent disability, brain damage, coma, permanent infertility, and anything else stopping just short of actual death has no defence under the statute.

This requires physicians to engage in a risk assessment for which their training and ethical principles - which require them to safeguard a patient's health and life - provide no guidance. In situations that allow little time for detailed risk assessments, they will be forced to determine whether they may act if there a 65% chance that the patient will die against a 35% chance that she may "merely" be permanently incapacitated. The consequences of erring on the side of the patient's safety create an untenable conflict of interest for physicians. A statute that purports to protect a woman's life without protecting her health in reality protects neither.

If this statutory language seems familiar, it is because this very statute, with some small differences, was held unconstitutional by the Court just seven years ago in Stenberg v. Carhart. Indeed, the lack of an exception protecting the woman's health was one of the principal reasons for which the Nebraska statute at issue in Stenberg was declared unconstitutional. The principle that "a State may promote but not endanger a woman's health when it regulates the methods of abortion6", has been the undisputed foundation of U.S. constitutional jurisprudence on abortion.

Until now.

In Stenberg, as in Gonzales last week, the proponents of the D&X ban claimed that a health exception was not necessary because “a ban on partial-birth abortion/D&X would create no risk to the health of women7.” The State of Nebraska based these claims on selective readings of documents prepared by the American Medical Association and American College of Obstetricians and Gynecologists, as well as by a little-known professional association calling itself the "Association of American Physicians and Surgeons". However, as Justice Breyer, writing for the majority, pointed out,

The upshot is a District Court finding that D&X significantly obviates health risks in certain circumstances, a highly plausible record-based explanation of why that might be so, a division of opinion among some medical experts over whether D&X is generally safer, and an absence of controlled medical studies that would help answer these medical questions. Given these medically related evidentiary circumstances, we believe the law requires a health exception8.

In these circumstances, the Court held, the State failed to meet its burden of proving that a health exception was unnecessary9.

Thus, Stenberg v. Carhart made clear that any ban on an abortion procedure would be presumed unconstitutional if it lacked an exception for the woman's health. If a ban is passed without such an exception, the onus is upon the government to demonstrate that no such exception is necessary. Where there is doubt or dispute as to the need for a health exception, or the medical evidence is conflicting, the exception is required. In dubio pro salute.

In Gonzales, on the other hand, an all-male majority of the Court saw things rather differently. Unlike its Nebraska-born twin, the Federal anti-D&X statute was upheld. The majority's opinion bases its decision on (1) attempts to make minor distinctions between the Federal Act and the Nebraska statute, (2) a surreal "balance" between the State's interest in "protecting the life of the fetus that may become a child10," and the woman's interests in life, health, and self-determination, (3) the "bond of love" between the "mother" and the "infant" she does not want and/or cannot safely have, and (4) the fact that Justice Kennedy, who wrote the majority opinion, finds the D&X procedure gross.

In so holding, the majority opinion is nothing short of acrobatic. For example, after correctly stating that prior decisions recognised the State's interest in "protecting the life of the fetus that may become a child11", it - surreally - proceeds to apply this principle to a statute that does nothing more than ban what in some cases is the safest way of terminating a pregnancy that is being terminated anyway. After all, the statute proscribes only one of several methods of terminating a pregnancy in the second trimester, and a relatively uncommon one at that. As if this were not enough, the majority even goes so far as to state that

[t]hough all three [Casey] holdings12 are implicated in the instant cases, it is the third that requires the most extended discussion; for we must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child13.

Even apart from the rather telling omission of a certain five words ("the health of the woman"), this statement is breathtaking. It takes a truly agile judicial mind to claim that it is even arguable that the governmental interest in protecting foetal life is somehow implicated in a statute that does nothing but proscribe a modality of aborting a foetus that isn't going to become a child anyway. That this interest is considered relevant, not to mention "balanced" against the health and safety of a woman whose life is a great deal more than potential is Kafkaesque to say the least. Worse yet, as discussed below, the majority actually holds that the interest in "protecting" the potential life of a foetus that will be aborted anyway trumps the woman's interest in health and safety!

After this staggering exercise in judicial audacity, the Court turns to what it considers a saving feature of the statute: the existence of a scienter requirement, i.e. the requirement that the physician "knowingly and deliberately" perform the banned procedure. "The scienter requirements," Kennedy assures us, "narrow the scope of the Act's prohibition and limit prosecutorial discretion14". This will be scant comfort to the nation's obstetrician-gynaecologists and surgeons, who will find themselves in the precarious position of having their freedom depend on "he said, she said". Though the State certainly must prove knowledge and intent where, as here, they are an element of the charged offence, the de facto burden of proof in cases like this will be borne by the doctor. A guilty state of mind (mens rea) is easily inferred, but extremely hard to disprove.

Having warmed up thus, the majority next sets its sights on the lack of a health exception. The reader may remember - and it bears repeating in any case - that this defect "necessarily renders the statute unconstitutional15", because even a post-viability abortion regulation that "fails to require that [the woman's] health be the physician's paramount consideration" cannot withstand scrutiny16. Indeed, because "the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of [...] the health of [the woman]17”, bans on methods of abortion that "[force] a woman [...] to terminate her pregnancy by methods more dangerous to her health18", cannot be sustained. Put briefly, the Court must either invalidate the Act for rendering the woman's health and safety irrelevant, or overrule an unbroken line of precedent.

The majority chose option B.

The balance of the evidence remains more or less as it was when Stenberg was decided. As in Stenberg, the leading professional associations and medical experts still state that the D&X procedure is medically necessary in some cases. The majority begged to differ with the principle reaffirmed by Stenberg, that a health exception is necessary “if substantial medical authority supports the proposition that banning a particular procedure could endanger women’s health19”, disparaging it as a "zero tolerance policy [that] would strike down legitimate abortion regulations" and "leave[s] no margin of error for legislatures to act in the face of medical uncertainty20."

It is indeed inspiring to see the lengths to which the Court will go to protect the legislature's right to choose from undue burdens.

The majority opinion creates the distinct impression that the requirement of a health exception is an invention of the Stenberg Court. It isn't. In Planned Parenthood of Southeastern Pa. v. Casey21, generally considered one of the most important Supreme Court abortion cases since Roe v. Wade, the Court held that postviability restrictions on abortion were only permissible if they contained "exceptions for pregnancies which endanger the woman’s life or health22." The majority itself selectively quotes the Casey opinion, carefully avoiding the passage in question. Moreover, in so holding, Casey only reaffirmed a principle that had already been in existence for 19 years at the time of that decision. The principle that “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of [the woman]23.”

The majority summarily dismisses this basic principle with minimal and superficial analysis. In an attempt to justify this unheralded break with precedent, the Court merely supplies two brief quotes that, at best, indicate that the "problem" with the Roe-Danforth-Thornburgh-Casey-Ayotte-Stenberg health exception requirement is that it frustrated the State's desire to enact regulations that would endanger, rather than promote a woman's health. If this logic seems bizarre, we may do well to remember that this is the Court that kept a straight face when referring to the "profound respect for life" felt by the Torture Congress.

It is useful, at this point, to compare the deft, yet minimalistic analytical wizardry24

of the Gonzales majority to the Court's analysis in Casey. In Casey, as in Gonzales, the Court found itself confronted with the question of whether to continue to uphold established precedent. The Casey Court spent the better part of thirty pages analysing the doctrine of stare decisis - requiring that precedent must be followed absent exceptional circumstances - in order to determine the standards to apply when deciding whether to deviate from precedent (in that case, Roe). The Casey Court ultimately held that

A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today25.

The Gonzales majority, on the other hand, was able to satisfy itself that an unquestioned, 34-year-old constitutional principle could be dispensed with after no more than two paragraphs, in which it did not even obliquely allude to the standards for determining the continuing vitality of a rule of constitutional law. To add insult to injury, the majority does not even pay the Roe-Danforth-Thornburg-Casey-Ayotte-Stenberg health exception requirement the respect of describing it accurately, preferring instead to create the false impression that it is a product of the 2000 Stenberg decision, the precedential import of which clearly underwhelms the majority. Nor, one might add, did the majority tarry on such notions as "the Court's legitimacy" and "the Nation's commitment to the rule of law".

Similarly, the Casey Court was at great pains to delineate the importance for individual women of the abortion rights in question in the case. For the Court in Casey,

the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society26.

Where the Casey Court saw "urgent claims of the woman to retain the ultimate

control over her destiny and her body, claims implicit in the meaning of liberty27", the Gonzales Court cannot find the energy to go beyond Hallmark sentiments about "the bond of love the mother has for her child28". For the Gonzales majority, rape victims who find themselves pregnant by their rapist, women impregnated against their will by abusive spouses in order to control them, and women who, for whatever reason, have not the slightest desire to have children and lack the stereotypical maternal sentiments , simply do not exist.

In the place of all of these women who exist only in real life, Kennedy treats us to a rousing rendition of Verdi's La donna è mobile (Woman is Fickle)29. "While we find no reliable data to measure the phenomenon," which, according to the majority of the research, is negligible, "it seems unexceptionable to conclude some women come to regret their choice to abort the infant [sic] life they once created and sustained. Severe depression and loss of esteem can follow30,31". Whose esteem they lose is left unstated, though one might hazard a guess about at least one possible suspect. Justice Kennedy, who spends more time on this matter than he did overruling the Roe-Danforth-Thornburgh-Casey-Ayotte-Stenberg-et al. health exception, even uses this opportunity for yet another (the third, for anyone keeping track) gratuitously emotive and gruesome account of the procedure:

It is self-evident that a mother [sic] 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 [sic], a child [sic] assuming the human form32."

One wonders if she might still feel a little better than a woman who, only after the event, learns that there was a procedure that could have saved her fertility for a time when she was ready and willing to make use of it, or the loved one who finds out that that the woman could have been saved from a coma brought on by cerebral anoxia due to extensive blood loss, if only it were legal.

With all of these paeans to la donna mobile, the "bond of love between mother and child", the "emotional consequence", the "grief more anguished and sorrow more profound," one almost expects to start hearing about how "woman is still regarded as the center of home and family life33," or about how "[t]he paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother" because of "the natural and proper timidity and delicacy which belongs to the female sex34". Luckily, however, the majority opinion was drafted by Justice Kennedy, rather than the newly arrived Justice Alito35.

However, one cannot entirely fault the men of the majority for their failure to fully imagine a situation which they will never have to face. Lacking any real frame of reference, they have little choice but to choose between stereotypes and deference to individual women. Clearly, the latter option is apparently as unimaginable to the men of the majority as the diversity of psychological reactions a woman might have to an unwanted pregnancy. It comes as no surprise that the only woman remaining on the Court is in the dissent.

Turning to the views of the only person on the current Court who might, even theoretically, have to put her money where her mouth is, many of the blanks left by the majority's opinion are filled. Justice Ginsburg, writing for herself and Justices Stevens and Breyer, recites a litany of defects in a decision she rightly calls "alarming36". Unlike the majority, Justice Ginsburg takes the time to expressly state what is at stake: "Legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature37."

Unlike the majority, Justice Ginsburg does not consider it entirely without significance that the "findings of fact" made by Congress regarding the D&X ban were patently false and arrived at through a "fact-finding" process that was, at best, a particularly tasteless joke. She recites at great length the wide variety of inaccuracies "found" as "fact" by Congress, including assertions that: no medical schools provide training in D&X (taught in fact by no less than Columbia, Cornell, Yale, New York University, Northwestern, University of Pittsburgh, University of Pennsylvania, University of Rochester, and University of Chicago), there is a "medical consensus" that D&X is never necessary (true only if one excludes the views of the premier professional association of obstetricians and gynaecologists and the umbrella organisation of the medical profession in the United States), and that there was "no credible medical evidence" that D&X is safe or safer than other available procedures (contradicted by Congress' own hand-picked witnesses). Even with these glaring inaccuracies, the "findings" are probably close enough to reassure people who do not bear the risk of error.

Turning to the majority's fascinating foray into the female psyche, Ginsburg is compelled to point out the obvious. The old canard about women regretting their decision to terminate a pregnancy and suffering "severe depression and loss of esteem38", is at best unsupported by the evidence (as the majority itself admits). To the majority's claim that the D&X ban somehow furthers the State interest in having women fully informed of the nature of the abortion procedure, she notes that "[t]he solution the Court approves, then, is not to require doctors to inform women,accurately and adequately, of the different procedures and their attendant risks.[...] Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety39." The Court decided to destroy women's interests in order to protect them.

One cannot help but have sympathy for Justice Ginsburg. All it took was two changes to the Court's composition to send the lot of them straight through the looking glass.

Even the pre-/postviability distinction, Ginsburg notes, has now come under attack. Despite the clear statement in Casey that “there is no line [more workable] than viability40,” Ginsburg notes,

Today, the Court blurs that line, maintaining that “[t]he Act [legitimately] 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.” Ante, at 17. Instead of drawing the line at viability, the Court refers to Congress’ purpose to differentiate “abortion and infanticide” based not on whether a fetus can survive outside the womb, but on where a fetus is anatomically located when a particular medical procedure is performed. See ante, at 28 (quoting Congressional Findings (14)(G), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769)41.

Ginsburg also draws attention to a tell-tale indicator that solid constitutional concerns were not the majority's primary motivation.

The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Ante, at 14, 24, 25, 31, 33. A fetus is described as an “unborn child,” and as a “baby,” ante, at 3, 8; second-trimester, previability abortions are referred to as “late-term,” ante, at 26; and the reasoned medical judgments of highly trained doctors are dismissed as “preferences” motivated by “mere convenience,” ante, at 3, 3742.

She might have further noted that Justice Kennedy's opinion frequently referred to the woman as "the mother", indicating the possibility that he is not without the odd preconceived notion about women's place in society.

The majority's reassurance that a challenge to the Act as applied in a particular case43, is, at best, illusory. It remains to be seen how a suit alleging that the D&X procedure is necessary for the health of a particular woman could ever make it to a final determination by the Supreme Court in a situation where every minute counts. The physician, of course, would be acting at her own peril to protect the woman's health in the meantime.

Ironically, the only even partially good news comes from Justice Thomas' concurrence, where he, joined by Justice Scalia, notes "that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it44". The Supreme Court has previously invalidated statutes where it believed that Congress had exceeded its constitutional power to regulate interstate commerce (the clause upon which Congress relied in passing the D&X ban). Under cases such as the Supreme Court's decision in U.S. v. Lopez45, "if [an exercise of the commerce power] is to be sustained, it must be [...] as a regulation of an activity that substantially affects interstate commerce46". In that case, the Court held that the Gun-Free Schools Act, which made it a federal offence to possess a gun on school property, did not have a sufficiently substantial effect on interstate commerce to be a permissible exercise of congressional power. These two sentences at the end of a one-paragraph concurrence seem practically an engraved invitation for a Commerce Clause challenge to the Act. Assuming that Justices Ginsburg, Breyer, and Stevens' votes remain the same, this would provide five votes to invalidate the Act. This, at least, would foreclose nationwide attacks on the right to abortion.

II. Its Portents

Ginsburg at best understates the case when she calls the Gonzales decision "alarming". If Gonzales is any indication of things to come, abject terror is not an altogether unwarranted response.

This is so for several principal reasons. For one thing, the majority has fundamentally changed the ground rules of constitutional adjudication, unceremoniously consigning such basic principles as stare decisis to the Memory Hole. Instead of a healthy respect for precedent and legal consistency, the Court will now place primary reliance on its visceral reactions ("moral concerns"). For another, the Court has laid bare a truly virulent hostility toward women's rights, going well beyond the abortion context. This can be seen in the willingness to accept stereotypes that admittedly lack a factual basis as a foundation for constitutional choices, not to mention the virtual absence of women and their concerns from the majority opinion. The fact that the majority is able to do all of this with minimal analysis shows, more than anything, that this is to be an extremely activist Court that will set aside all of the tenets of judicial restraint and protection of settled expectations to arrive at the desired result. In sum, we are dealing not with a "conservative" Court, unless we accept the extreme distortion of that term. Rather, we are dealing with a fundamentally reactionary body that wishes to clean house.

The majority was right not to invoke concepts such as legitimacy and the rule of law. They clearly have lost all meaning. "The promise of constancy," states yet another unquoted section of the Casey opinion,

once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. From the obligation of this promise this Court cannot and should not assume any exemption when duty requires it to decide a case in conformance with the Constitution. A willing breach of it would be nothing less than a breach of faith, and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that47.

In effect, the Court has now announced that Judiciary, Inc. is under new management and the prior collective bargaining agreement will no longer be honoured.

Concerns about things like stare decisis are not merely abstract. As the quote above makes clear, they are the very source of whatever legitimacy a court can be said to have. Stare decisis is what lets you know that when you go to bed on Monday night, you will have the same rights when you wake up on Tuesday. This is what the Germans call Rechtssicherheit (translated approximately as "legal security"): the idea that the people of a country or other legal system have at least some steady ground underneath them. A court that turns the ground its citizens stand on into a sink-hole for purely personal, political reasons ("moral concerns" is the polite term, and thus will not be used here) is no longer worthy of the name, for it no longer stands for anything other than its own predilections and proclivities. In an age where even habeas corpus and torture are up for grabs, one can only look upon such developments with a sense of profound dread.

That said, the ideal is not an idealised, apolitical court. That doesn't exist. Judges are people, with shortcomings, prejudices, ideologies, preconceived notions, and gut feelings, and high courts deal almost exclusively with issues of profound political and social importance. It would be unrealistic to expect any judge, no matter how conscientious, to somehow put aside subconscious feelings and inclinations (what one might call "judicial transference") altogether. A Supreme Court made up of robots, while an interesting concept, is no more desirable than a Supreme Court made up of constitutional DIY enthusiasts. A house renovated by men who disregard instruction manuals will surely fall on all who seek shelter in it.

What is needed from any jurist is a profound self-consciousness, much like that required of a psychologist or psychiatrist. A priori preferences and prejudices are part of the human package; however, that does not absolve either profession from making the greatest possible effort to confront those issues so that they do not impede the task of acting conscientiously and properly. The knee-jerk reaction is a marvel of neurology, but it is not an impressive characteristic of someone responsible for making wide-ranging decisions that will decisively shape the lives of future generations.

In this regard, the Gonzales Court has performed abysmally. It has acted as an unofficial Deputy Solicitor General, seeking to defend an indefensible statute. It has made the language of the PR industry ("abortion doctor", "partial birth abortion", "unborn child") its own. When an advocate acts in this manner, it is accepted, because there is another advocate on the other side, who will not fail to attack every one of her opponent's absurd assertions. When the highest court in the land does so, there is no counterpart to reply.

Thus, Gonzales is doubly dangerous. On the one hand, it exposes countless women to disability and injury just short of death. That, lest we forget or choose to go into denial, is the direct effect, and most obvious danger, of the decision. On the other hand, it constitutes a signal to every reactionary politician, judge, and legislator in the land that the Court is ready to give away the store. If the health exception - previously unquestioned - can go, then the sky's the limit. Fundamentalist panderers at every level of State and Federal government will eagerly mass at the porous Gonzales border to test the weaknesses in the new frontier. What will go next? It could be "merely" the right to get an abortion altogether. Or, we could see attempts to bring back an "originalist" construction of the Fourteenth Amendment's Equal Protection Clause, which was, after all, only relatively recently interpreted to prohibit sex discrimination. It seems unrealistic, but, then, it also seemed almost inconceivable that the Court would uphold the Congressional D&X ban in the face of a precedent so new that it hasn't even gathered a respectable amount of dust yet. Legal security has gone the way of job security.

What's Next?

Or, of course, it is possible that the Court will quickly act to limit Gonzales to its facts and reaffirm the health exception in all other cases. This, short of overruling the decision or resigning en masse in recognition of the manifest injustice of their decision, would be the responsible course for a post-Gonzales Court. This may happen, or it may not. A responsible, moral populace cannot leave this up to chance. Ultimately, only a newly radicalised populace can provide an effective rebuttal to judges who have forgotten that they sit on the bench rather than standing before it.

This is the only remotely good thing that can come of such a decision. A grotesque perversion of jurisprudence, at bottom, serves at least as a wake-up call for a complacent populace. It serves as a reminder of questions we need to start asking ourselves.

For example, how exactly did we - who support women's fundamental human rights - end up on the defensive? We are firmly in the majority, both of the female population and the population as a whole, and our numbers have grown steadily over several decades. How did we end up as a polite, almost demure movement facing so-called "pro-lifers" who do not shy away from (let alone condemn) deadly violence?

They bomb our clinics, shoot our doctors, terrorise us, our mothers, sisters, friends, and daughters (all in the name of the sanctity of life!), and we file RICO suits against them (and lose!). They compare us to the Nazis (conveniently forgetting that Hitler made abortion a capital offence), and we allow as how abortion is (sigh) an agonising choice, but please (sob) can't we just be left alone for a little bit to make the decision for ourselves? (We promise we'll think real hard about it!) They engage in feats of hypocrisy and audacity that render satire practically obsolete (ever notice that the foetus is the only organism they have any interest in keeping alive?), and we're too busy moving our medical services into worse and more remote neighbourhoods, and helping our health care providers find the best deals on Kevlar vests and helmets. When they tire of killing, they try to find new and creative ways to cut off vital funding and send our doctors to jail. How do we respond? We crank out a few amicus briefs and cross our fingers (and lose!).

And why have we allowed their language to prevail, a language that reeks both of extreme violence and foetid hypocrisy? "Pro-life", "partial-birth", "abortionist", "abortion doctor", "anti-life", "unborn child"...this is the language of a bunch of (almost exclusively) men who are in desperate need of a lesson in the virtues of humility and honesty, both entirely appropriate qualities for a reactionary movement with dwindling popular support.

Turning the Tables

If we are to assume our rightful place as a popular majority, we can no longer let such mendacities go unrebutted. "Pro-life"? When they're not killing people outright, they're trying to pass laws that require a woman to die for a foetus that may not even survive anyway. Nor should we forget that they generally support the death penalty, nuclear weapons (when it's one woman, it's an "unborn child", when it's a million women, it's a statistic), the murderous occupations of Iraq and Afghanistan, and a wide variety of economic and social policies that have helped bring back not only death by starvation but a wide variety of virtually extinct diseases. As George Carlin put it, these "right to life" people are fighting for "their right to decide which people should live or die."

Obviously, it's not life that has these people so exercised. Life is only sacred to them when it can be used to force their will upon unwilling women. We have words for that sort of conduct, and "pro-life" isn't one of them. Let us start calling this blight on our political landscape what it really is: The Rape Lobby - a group of (almost exclusively) men who don't want to deal with the DNA evidence and possible prison time of forcing themselves on women one by one, so they force themselves on women wholesale via the legislative and judicial processes. There are certainly groups of terrorists that "hate our freedom", but they come from closer to home than some would have us believe.

What I am subtly hinting at here is that we should stop being so nice and accommodating. For too long, we have taken the passive, defensive role in this struggle. This is behaviour unbecoming an overwhelming majority. It is time to go on the offensive. Let us picket their offices and have sit-ins in their places of business. We can padlock their doors and chain ourselves to their furniture. When they scrawl misspelt epithets like BABYKILLER on our clinics, we should consider scrawling WOMANKILLER and PRO-RAPE on theirs (we would pick up points both for spelling and accuracy!). We should actively pursue nuisance abatements on their property and use available laws to freeze the accounts of these home-grown terror cells and their supporters. They have created an environment of fear and passivity amongst us by pursuing a simple formula: attack, disrupt, and harass. It is time they learned that those games have a two-player variant.

Following the passage of the 13th-15th Amendments to the U.S. Constitution, which formally granted (male) African Americans the rights of citizenship, reactionary elements in the South and elsewhere formed terrorist organisations to terrorise the African American community out of exercising its newly won rights. These organisations came to be known as the Ku Klux Klan, and their express mission was to keep African Americans in "their place". In this regard, they are virtually identical to the terrorist organisations formed to ensure that women's newly-won rights existed only on paper. The only difference is the relative candour with which the KKK expressed their purpose.

There can no more be debate with Right-to-Rape groups than there can be with the KKK. As Noam Chomsky said of Holocaust Deniers,

By entering into the arena of argument and counterargument, of technical feasibility and tactics, of footnotes and citations, by accepting the presumption of legitimacy of debate on certain issues, one has already lost one's humanity 48.

This is so because there is no common ground, no matter on which to compromise, and no mutual understanding to be had. To enter into debate with such groups is no more reasonable than to debate the propriety of human slavery. We would not even think of debating such a matter, even with wholly non-violent advocates of slavery. We have nothing to concede except our own humanity, dignity, and liberty, for that is what these groups seek to take. Chomsky's statement has never been more literally true. On this we may never waver: We do not argue or negotiate with those who seek to own us.

Note that I am advocating merely non-violent harassment and damage to property (as well as the creative use of available legal recourse). We must never squander our greatest political asset: unlike the "pro-life" movement, we do not kill.

However, we must also take into account the roots of this movement. A good deal of the men involved in anti-abortion organisations are lower middle or working class, two groups who have experienced extreme social descent due to the regressive economic policies of the last several decades. They have seen their income, their status, their employability, and their general outlook decline, and, of course, they are looking for a culprit (and those who advocate the policies that have caused this decline are more than happy to point the finger in a wide variety of other directions). Some of them may end up in racial hate groups, or the anti-immigrant movement, or the anti-GLBT movement, or the little private armies found in remote areas of the plains states and the western U.S. Others see their losses, and the modest gains of women, and decide that women must be to blame.

Thus, the only truly effective way to counter these reactionary tendencies is to ensure that the defence of the right to abortion is only part of an overall context of other socially responsible policies. Bigotry and chauvinism feed, at least in substantial part, on economic marginalisation and social isolation. If we are truly serious about ending the assault on women's freedom, we must not overlook those legitimate socio-economic grievances that lead people to seek empowerment by oppressing others.

There will always be those who cynically exploit the legitimate grievances of the disenfranchised. They are the primary source of the funding of these groups. We should waste no efforts on convincing them of the injustice of their actions (a matter of monumental indifference to them); we can only obstruct them and make it harder for them to find willing dupes.

With this renewed programme of political action, we must renew our concepts of political organisation. Too long, we have relied on a nominal two-party system to throw us the occasional crumb. Ever since women became an identifiable voting block, we have not been able to expect even that. The Democrats ignore us and the Republicans are apathetic on a good day and openly hostile on a bad one. These are not allies. Reliance on existing political institutions is not how the abolition of slavery, women's suffrage, and all the other major popular victories of recent centuries were won. Rely on existing structures, and you'll be begging your whole life long. Shun them and build your own party, and the existing structures will start begging you for a handout.

In the late 1980s, the National Organization of Women (NOW) passed a resolution calling for the formation of a committee to explore the formation of a feminist-led political party with a broad progressive platform. The existing candidate-generating organs, terrified at the possible loss of such a large voting block, successfully eliminated the threat by ridiculing the idea as unrealistic. Twenty years later, it is time that we finally form our own party. There is nothing stopping us but a self-fulfilling prophesy of failure. If Haitian peasants, suffering under a sadistic and brutal dictatorship backed by the hemispheric superpower, can get together to get their candidate elected by a 70% margin of victory, then certainly we can at least try.

1410 U.S. 113 (1973)

2530 U.S. 914 (2000)

3While it is true that the Act contains an exception allowing physicians to perform D&X when necessary to save the life of the woman, this exception is illusory. Without the additional protection of the constitutionally required health exception, doctors will be acting at their own risk when determining that a woman's life is in danger, rather than "merely" her health.

418 U.S.C. § 1531 (a),(b)(1)(A),(B)

5§ 1531(a)

6Stenberg, at 931 (BREYER, J.)

7Id., at 983 (citing Nebraska brief)

8Id., at 988-989

9530 U.S. 984 ("The State fails to demonstrate that banning D&X without a health exception may not create significant health risks for women, because the record shows that significant medical authority supports the proposition that in some circumstances, D&X would be the safest procedure." [emphasis supplied])

10 Majority op. at 15

11 Id.

12No undue burdens, no prohibition on abortion before foetal viability, "the legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child", 505 U.S., at 846.

13Majority op., at 15 (emphasis supplied)

14Majority op. at 19

15Stenberg, supra, at 948 (O'CONNOR, J., concurring)

16Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 768-769 (1986)

17Roe v. Wade, 410 U.S., 164-165 (1973) (emphasis supplied)

18Dissenting op., at 5 (GINSBURG, J.), quoting Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 79 (1976)

19Gonzales, majority op. at 36 (quoting Stenberg, 530 U. S., at 938) (internal quotations omitted)


21505 U.S. 833 (1992)

22Casey, 505 U.S. at 846.

23Roe, 410 U.S. at 164-165 (emphasis supplied)

24Thank you, Judge Kent. See Bradshaw v. Unity Marine Corporation, Inc., 147 F.Supp. 2d. 668 (2001).

25505 U.S. at 869 (as with all other Casey quotes cited, this one was authored by Justice Kennedy himself)

26505 U.S. at 852

27505 U.S. at 869

28Gonzales, majority op., at 28

29 La donna è mobile Woman is flighty
Qual piuma al vento, Like a feather in the wind,
Muta d'accento — e di pensiero. She changes her voice - and her mind.
Sempre un amabile, Her ever-sweet,
Leggiadro viso, Pretty face,
In pianto o in riso, — è menzognero. In tears or laughter, - always deceives you..

30Majority op., at 29

31See, for extensive citations, dissenting op. fn. 7:

The Court is surely correct that, for most women, abortion is a painfully difficult decision. See ante, at 28. But "neither the weight of the scientific evidence to date nor the observable reality of 33 years of legal abortion in the United States comports with the idea that having an abortion is any more dangerous to a woman's long-term mental health than delivering and parenting a child that she did not intend to have ... ." Cohen, Abortion and Mental Health: Myths and Realities, 9 Guttmacher Policy Rev. 8 (2006); see generally Bazelon, Is There a Post-Abortion Syndrome? N. Y. Times Magazine, Jan. 21, 2007, p. 40. See also, e.g., American Psychological Association, APA Briefing Paper on the Impact of Abortion (2005) (rejecting theory of a postabortion syndrome and stating that "[a]ccess to legal abortion to terminate an unwanted pregnancy is vital to safeguard both the physical and mental health of women"); Schmiege & Russo, Depression and Unwanted First Pregnancy: Longitudinal Cohort Study, 331 British Medical J. 1303 (2005) (finding no credible evidence that choosing to terminate an unwanted first pregnancy contributes to risk of subsequent depression); Gilchrist, Hannaford, Frank, & Kay, Termination of Pregnancy and Psychiatric Morbidity, 167 British J. of Psychiatry 243, 247-248 (1995) (finding, in a cohort of more than 13,000 women, that the rate of psychiatric disorder was no higher among women who terminated pregnancy than among those who carried pregnancy to term); Stodland, The Myth of the Abortion Trauma Syndrome, 268 JAMA 2078, 2079 (1992) ("Scientific studies indicate that legal abortion results in fewer deleterious sequelae for women compared with other possible outcomes of unwanted pregnancy. There is no evidence of an abortion trauma syndrome."); American Psychological Association, Council Policy Manual: (N)(I)(3), Public Interest (1989) (declaring assertions about widespread severe negative psychological effects of abortion to be "without fact"). But see Cougle, Reardon, & Coleman, Generalized Anxiety Following Unintended Pregnancies Resolved Through Childbirth and Abortion: A Cohort Study of the 1995 National Survey of Family Growth, 19 J. Anxiety Disorders 137, 142 (2005) (advancing theory of a postabortion syndrome but acknowledging that "no causal relationship between pregnancy outcome and anxiety could be determined" from study); Reardon et al., Psychiatric Admissions of Low-Income Women following Abortion and Childbirth, 168 Canadian Medical Assn. J. 1253, 1255-1256 (May 13, 2003) (concluding that psychiatric admission rates were higher for women who had an abortion compared with women who delivered); cf. Major, Psychological Implications of Abortion--Highly Charged and Rife with Misleading Research, 168 Canadian Medical Assn. J. 1257, 1258 (May 13, 2003) (critiquing Reardon study for failing to control for a host of differences between women in the delivery and abortion samples).

32Majority op. at 29

33Hoyt v. Florida, 368 U.S. 57, 62 (1961)

34Bradwell v. Illinois, 83 U.S. 130, 141 (1872)

35See Planned Parenthood of Southeastern Pa. v. Casey, 947 F.2d 682 (3rd Cir. 1991) (dissenting opinion by then-Circuit Judge Alito holding that, because it was not an undue burden for teenage girls to be required to obtain the consent their parents for an abortion, a spousal "notification" requirement tantamount to spousal consent could be imposed on married, adult women)

36Dissenting op. at 3 (GINSBURG, J.)

37Id., at 4.

38Majority op. at 29

39Dissent, at 17

40Casey, 505 U.S., at 869

41Dissenting op. at 19

42Id. 19-20

43Majority op. at 38

44Concurring op., 1 - 2

45514 U.S. 549 (1996)

46Lopez, 514 U.S., at 559

47Casey, supra, at 868 (emphasis supplied)


No comments: