So now you know. It really does matter who's President and which party controls Congress. A Democratic-controlled Congress would never have passed the Partial-Birth Abortion Act, which banned intact dilation and extraction abortions and, in flagrant violation of Roe v. Wade, lacked an exception to preserve the health of the woman. A Democratic President would never have signed such a bill. Nor would he have nominated the extremely conservative anti-choicers John Roberts and Samuel Alito to the Supreme Court, which on April 18 upheld, in Gonzales v. Carhart by a 5-to-4 vote (Roberts, Alito, Kennedy, Scalia, Thomas — all GOP nominees), a ban essentially identical to one rejected 5 to 4 in Stenberg v. Carhart seven years ago, when Sandra Day O'Connor was on the bench.
So, NARAL Pro-Choice America — or whatever your latest bland, pandering brand name is — maybe, much too late, you'll rethink your policy of supporting pro-choice Republicans, who made the majorities that set the agenda that led us to this very bad place. And maybe, Tom Frank and assorted liberal know-it-alls of the op-ed page and blogosphere who've been telling us to calm down because Republicans are all bark and no bite on abortion, you'll take a look at the real world. Sometimes politicians deliver on their promises. As for all you pro-choicers with qualms out there — who think abortion is icky and "late term" abortion especially so, although you couldn't say exactly when that even is, and who wonder why women are so careless and shouldn't emergency contraception have taken care of this already? — maybe it's time to start defending the right you say you believe in, instead of cutting the ground out from under it.
Sorry. I'm upset. For the first time, the Supreme Court has ruled that the health of an actually existing human woman doesn't matter, never mind Roe. Nor does a doctor's judgment. What counts, according to Justice Kennedy's majority decision, is that this particular method of abortion "devalues human life." Besides, the woman, confused little flower nodding her head in the breeze, needs to be protected from regret, the "grief more anguished and sorrow more profound" that might come when she realizes the exact nature of the procedure. Regret! If that's a criterion, no one could ever decide about anything. Maybe we women should call up Justice Kennedy whenever we have a big decision to make. "Um, excuse me, Justice Kennedy, Bob just proposed, but what if he's not The One? And while I have you on the phone, the job in California sounds so great, but what if I never finish my novel? And what if I vote Republican because I'm scared of Osama, but then Congress tries to make me have a baby?"
Numerous commentators have downplayed the significance of Gonzales v. Carhart — you can still get an abortion, just not with this method, which was only used in about 2,000 cases a year anyway. But that ho-hum approach overlooks what is new here and where it's going. I've mentioned the paternalism and the Roe-disregarding lack of a health exception. But let's not forget the sheer useless moral posturing: A woman can wind up injured, and her fetus will be aborted anyway, but the tender sensibilities of Kennedy and his four brethren will be protected! What other procedures will they find "shocking" down the line? It's not as if the alternatives — dismembering the fetus in the womb and extracting it piece by piece; poisoning it and delivering it dead — are delightful to contemplate. Why shouldn't they find more and more abortions unacceptable — maybe even all of them?
Perhaps they will. Because another thing this decision demonstrates is how deeply anti-choice disinformation has penetrated the worlds of power and influence. Kennedy's regretful woman comes straight from the anti-choice playbook, in which women who choose abortion are invariably bewildered, heedless, misled, manipulated and in need of guidance from wiser heads. When Kennedy refers to the gynecologists and obstetricians who perform abortions as "abortion doctors," he's repeating anti-choice language intended to impugn the professionalism of these physicians and make it easier to disregard their judgment about how best to care for their patients. Abortion doctors! What do they know? The ban itself — calling the procedure "partial birth abortion," as if the fetus were days from being born (it's actually performed in the second trimester); singling out a method and using the emotions it arouses to violate the trimester distinctions of Roe and the pre-viability and post-viability distinction of Casey is part of the anti-choice strategy to shut down legal abortion one restriction, one legal precedent at a time. And what about pro-choicers' weak responses? NARAL caved in on the ridiculous Unborn Child Pain Awareness Act. South Dakota's Healthy Families confined its opposition to the lack of rape, incest and health exceptions in the state's abortion ban, thus setting the stage for acceptance of future bans that added those provisos.
Beyond all this, it's flatly outrageous that five men — five devout Catholic men, 56 percent of the court — can impose their will on women's bodies, talking about "anatomical landmarks" as if a woman's reproductive system were some kind of national park. None of them will ever be pregnant or want or need an abortion. That should have made them humble. I wonder if anyone reading this will live to see a Supreme Court in which a five-woman majority rules on an issue in which the reproductive lives of men, and only men, are at stake. Right now, Ruth Bader Ginsburg is all alone up there, watching her legacy go up in smoke.
By Katha Pollitt
Reprinted with permission from the The Nation