Partial-birth revenge


The U.S. Supreme Court's narrow ruling last week upholding a federal ban on so-called partial birth abortion encompassed two breathtaking outrages. But it probably will prove less dire than suggested by Associate Justice Ruth Bader Ginsburg's powerful and seemingly angry dissent.

If this is the revenge of the right wing, then the center and left -- and, first and foremost, women -- will be, while properly offended, all right.

First of the outrages is the very nomenclature, "partial-birth abortion." It reflects the rhetorical genius of the right wing. For smart phrasing, it ranks up there with the tax on the very wealthiest inheritances, which Republicans, wanting to spare rich heirs any dastardly deductions, seek to repeal on the basis that it's a "death tax."

Very rarely, a doctor has determined late in a woman's pregnancy that the woman's health was threatened. Sometimes in such rare cases, the doctor would execute a procedure that indeed sounds gruesome. The doctor pulls out the living fetus and crushes its skull.

Doctors, as clinically detached as the right wing is rhetorically overheated, usually call the procedure "dilation and extraction" or "intact dilation."

The rest of us, neither overly clinical nor overly heated, can best rely on "late-term abortions." But that's not to say this aforementioned procedure is the only, or even the most common, procedure used for a late-term abortion. Doctors have come to rely more in such cases on dismembering the fetus in the uterus. That procedure was not affected by last week's ruling, and, as yet, the genius phrase-makers of the right have not found the perfect incendiary label for it.

Second of the outrages is the very essence of this ruling. It says, for the first time, that a woman's health can be at issue and the law will elevate the judgment of politicians over that of physicians.

The abortion issue is not likely to come down to outright repeal of Roe v. Wade. Instead it will come down to how far politicians can erode the right established by it. The extent to which a doctor can consider the woman's health -- not her life, but her good health -- is the very heart of the modern debate.

For now, all the court has said is that Congress was within its rights to restrict this one very rare procedure, and not even the preferred procedure in such cases.

It did so on a 5-4 vote with the majority provided by Justice Anthony Kennedy, the new swing vote and most powerful person in the country, replacing Sandra Day O'Connor.

That Kennedy stepped right on this case doesn't mean he won't step left the next time. In fact, he stepped right so gingerly that he seemed to signal he'd prefer not doing it again.

He stressed in his opinion for the majority that he was merely saying that the right to an abortion did not necessarily grant doctors a right to "unfettered options" in performing the procedure.

In other words: If there are indeed procedural options, and if the politicians think one of them sounds too gruesome, then the politicians can outlaw that option without necessarily being unconstitutional.

Kennedy even mentioned that the court might entertain a challenge in a case in which a doctor found it necessary to perform the banned procedure because of medical complications.

I'm thinking from Kennedy's delicate words that the nation's moderate course on abortion remains generally unchanged.

But if something should happen to him or any of the four justices to his left before Hillary or Barack gets in the White House, all bets are off.

John Brummett is an award-winning columnist for the Arkansas News Bureau in Little Rock. His e-mail address is jbrummett@arkansasnews.com.

 

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