Thank God for President Bush, and thank God for Chief Justice John Roberts and Associate Justice Samuel Alito," intoned Richard Land of the Southern Baptist Convention last week, after the Supreme Court announced its decision in Gonzales v. Carhart, the so-called partial-birth abortion case. But Land also should have thanked Justice Anthony Kennedy, whose majority opinion dangerously reframes the abortion debate.
Kennedy doesn't proceed from the question of harm to the unborn — the premise on which the congressional act in question is based. Instead, he reasons that the ban on D&X procedures — the medical name for what the anti-choice movement calls partial-birth abortions — should be permitted because it is meant to protect women from making a choice that goes against their nature. "Respect for human life finds an ultimate expression in the bond of love the mother has for her child," Kennedy declares. Concerned that women may learn the details of how the procedure is performed only after the fact, he writes, "The State has an interest in ensuring so grave a choice is well informed."
Kennedy's opinion undermines constitutional protections for a woman's right to make decisions established in Roe v. Wade. And, just as disturbingly, it summons up assumptions about women that go back to discredited paternalistic decisions of the Supreme Court. "It's only a couple of paragraphs in the decision," notes Yale Law School Professor Reva Siegel. "But it's alarming." In Kennedy's words, one hears the echo of the anti-choice movement's new emphasis on abortion as a de facto violation of something at the very core of women's being. Medical technicalities take up the bulk of the Court's majority opinion, but the reasoning concerns the nature of women and the integrity of their moral choices — an implicit rejection of the most mainstream tenets of modern feminism.
Legal abortion owes an enormous debt to the women's movement; without question, feminists were critical in the last stages of the push. But the idea of abortion as a necessity for women's well-being first came from liberals and moderates in the 1960s and even predated feminist arguments for a woman's right to choose. For nearly 50 years, Americans have been able to separate the more abstract arguments about morality and women's rights from the very concrete issues of women's integrity and their health. Kennedy repudiates this understanding by reviving antique views of women as well as endorsing the new pseudoscience of the anti-choice movement.
Often lost in the debate over D&X abortion is the fact that the procedure is exceedingly rare; in 2000, there were just 2,200 cases — or 0.17 percent of all abortions. The procedure is rare because it is used to end a pregnancy late in the second trimester or later, before viability, in a tiny number of cases when the woman's life is in danger. Abortions late in the second trimester are medically involved, potentially risky, painful, and emotionally difficult. So who waits that long?
The answer is simple: women and girls in states of duress. This includes teenagers who didn't realize they were pregnant, or kept hoping they weren't pregnant, or were too frightened to tell anyone and get help (a common plight of incest victims). It also includes women whose pregnancies have gone wrong, such as women found to be carrying fetuses with serious central nervous system anomalies like hydrocephaly.
Ironically, it was precisely women like these, caught in painful circumstances, who first prompted public awareness of the need to overhaul abortion law. Before Roe v. Wade, abortion was as widely practiced as it is today, an open secret despite being illegal everywhere. But, in the late '50s, medical professionals faced a public health crisis as the abortion rate soared and the woman hemorrhaging from botched procedures became a familiar presence in hospital emergency rooms. Reformers began by attacking laws that prevented women whose lives were threatened or who were pregnant as a result of rape or incest from getting abortions. They called for laws allowing "therapeutic" abortion in "hardship" cases to be authorized by a hospital physicians' committee. In the '60s, the idea of therapeutic abortions gained force, garnering support from liberal Protestants and Jews, lawyers, psychiatrists, and social workers. Small bands formed across the country to press the issue in state legislatures. Two panics about birth defects — the thalidomide scandal and a 1965 rubella epidemic — stirred up discussion about what it meant to a woman to give birth to a severely damaged child. The idea of urgent need expanded from a pregnancy that endangered a mother's life to one that endangered her mental health. By the late '60s, reformers had won laws for therapeutic abortion in a number of states.
Over the short run in the '60s, therapeutic abortion really only showed the urgent need for a much bigger change. The therapeutic "exception" never worked: Applications were few, because women were put off by the time-consuming and judgmental screening process before all-male physicians' panels, and most women didn't qualify, anyway. Committees strained to minimize the number of applications they approved, and there were horror stories of women denied — such as the woman confined to her bed by polio. And committees weren't the only problem.