More on abortion reversal
I’ve been challenged on my post decrying the recent Supreme Court decision to criminalise intact dilatation and evacuation (iD&E), so here’s more argumentation about how I came to my conclusion. For those who enjoy reading 73-page legal documents, the complete summation can be found here.
The finding can be condemned on two grounds. It ignored medical evidence and expert medical opinion when ruling on a matter of medical procedure, and it over-reached the proper role of the Court, that is, it was a classic case of “judicial activism.” I’m going to start with the medical side because that’s where my own knowledge base lies. The New England Journal of Medicine has already responded to the findings with three editorials.
From “The Partial Death of Abortion Rights” by R. A. Charo:
But this case is singular in that the Court upheld congressional findings even in instances in which multiple state trial courts had found these same assertions to be based on nonexpert testimony and, in several instances, factually erroneous. The Court then argued that since medical opinion is divided about D&X, Congress has the authority to invade the doctor–patient relationship and substitute blanket legislative judgment for individualized medical judgment concerning the best care for a particular patient.
From “The Intimidation of American Physicians - Banning Partial Birth Abortions” by Michael F. Greene:
The decision to pursue a second-trimester abortion is never taken lightly and usually results only after anguished discussions among the patient, her loved ones, and her health care providers. Once the decision has been made to perform a second-trimester surgical abortion, the last thing a provider needs is to have to worry that the procedure could potentially evolve into a criminal act if a fetus in breech presentation should slip out intact through a partially dilated cervix. But this is exactly the situation created by the partial-birth abortion bill.
From “Government in Medicine” by Jeffrey M. Drazen:
In 2005, we all saw the disastrous consequences of congressional interference in the case of Terri Schiavo. In that case, the courts wisely decided that Congress should not be practicing medicine. They correctly ruled that wrenching medical decisions should be made by those closest to the details and subtleties of the case at hand. Such decisions must be made on an individual basis, with the best interests of the patient foremost in the practitioner’s mind.
It is not that physicians do not want oversight and open discussion of delicate matters but, rather, that we want these discussions to occur among informed and knowledgeable people who are acting in the best interests of a specific patient. Government regulation has no place in this process. In 1997, another editor of the Journal, Jerome Kassirer, took Congress to task for practicing medicine without a license. He cited a number of instances, including the passage of a forerunner of the bill that the Supreme Court upheld last week. With Gonzales v. Carhart, the judicial branch has regrettably joined the legislative branch in practicing medicine without a license.
There are no pieces in the NEJM in favour of the finding, not even the editorial by Jeffrey Drazen, who is a respiratory physician with no professional investment in abortion techniques. Due to publishing timetables, the JAMA and the Annals of Internal Medicine have not had an opportunity to report. I await their comments with interest.
So it’s not just me. The main objections to the bill are that (i) it does not allow exceptions for the health of the mother, only in undefined “life-threatening” situations, and (ii) it criminalises a technique based on arbitrary endpoints that cannot be predicted by the doctor in advance.
To these objections, well described in the editorials above, I would add two significant objections of my own.
The first is the justices’ inappropriate use of emotive language. The justices recognise that “partial-birth abortion” is not a medical term. It was invented by anti-abortion activists as a “framing tool”; in other words, it is a manipulation of terminology to demonise a technical procedure. It is perfectly appropriate for the justices to use the term in so far as it appears in the name of the original Bill — but they use it widely throughout their opinion, even choosing to define “partial-birth abortion” as their preferred technical term, and the phrase seems to crop up repeatedly at times of rhetorical convenience.
The justices describe in extraordinary detail the procedure of performing an iD&E. The only possible reason for including all these gory details is to wave their anti-abortion credentials. When discussing the various methods of evacuating the foetal brain during an iD&E, the justices quote a nurse describing her experience of seeing an iD&E to the Senate Judiciary Committee.
From page 8:
Dr. Haskell went in with forceps and grabbed the baby’s legs and pulled them down into the birth canal. Then he delivered the baby’s body and the arms–everything but the head. The doctor kept the head right inside the uterus…
The baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.
The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out. Now the baby went completely limp…
He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.
Note the confronting language used. Note the repeated use of the word “baby,” not the correct term of foetus. Note the strategic ellipses. Note that the nurse is not named once, but Dr Haskell is named many times throughout the opinion. After some digging, I finally found the testimony to which the opinion refers. The nurse’s name is Brenda Pratt Shafer (she states in her testimony that she is happy to be named) and we find that she had been working with (but not for) Right to Life at the time of her testimony, so it is hardly non-partisan. That doesn’t diminish her testimony in itself, but this does: Whatever else happened in that procedure, the nurse testified to something that absolutely did not take place. “He threw the baby in a pan, along with the placenta and the instruments he had just used.” Haskell may well have placed the foetus in the pan, but there is no way he would have tossed it there. Nurse Shafer later testifies that the foetus was gently wrapped in blankets and given to the mother to hold — which hardly fits the description of a heartless baby-tosser. It is also extremely unlikely that Dr Haskell delivered “everything but the head” while keeping “the head right inside the uterus.” Unless the poor mother had such a severe prolapse that her uterus was sitting right at the opening of her vagina, then there must have been a part of the foetus’s body that had not been delivered.
Shafer’s testimony is an emotive rush, complete with statements like, “That baby boy had the most perfect angelic face I have ever seen.” There is nothing wrong with Nurse Shafer being anti-abortion or testifying in emotional overdrive — except for her use of the terms “baby” and “threw in the pan,” which deserve criticism for being misleading, as do the technical errors and glosses in what is supposed to be informed testimony. But why, of all the thousands of documents to choose from, did the majority judges choose to quote this one? Why at such length? Why omit the crucial details of Shafer’s association with Right to Life and several other facts that place her testimony in context? And why, most of all, would they quote this immediately after describing the same procedure in dispassionate technical terms? Because, it seems, they wanted to give a hook for the anti-abortion movement to hang its hat on. And indeed, if you Google the reference (H. R. Rep. No. 108-58, p. 3 (2003)), you find that quote has already been run up the flagpole by anti-abortion bloggers.
Bizarrely, this admittedly gruesome technique is entirely legal under the Act that the Court upheld — with one proviso: it is only criminal to perform the fatal coup after the foetus’s head (or navel if in a breech lie) passes out of the mother’s birth canal. If the doctor kills the foetus earlier, then everything is fine from a legal perspective. If Dr Haskell was to reach into the woman’s birth canal at an earlier stage and do exactly the same thing, the procedure would still be legal under the new law.* All this extraneous testimony served not one whit of legal purpose. It was manna for the Christian conservative supporter base.
My second objection is to the majority opinion that “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Firstly, we see the justices slipping into anti-abortion propaganda. Memo to clueless judges: a foetus is not an infant. More disturbingly, this is offered by the Court as an argument for criminalising iD&E because a woman might come to regret her decision. By this standard, we ought to criminalise cosmetic surgery and tubal ligation, not to mention marriage, tattoos, and Dashboard Confessional.
That’s the medical side. If I get to it, I’ll address the legal activism in another post.
*Addendum: I leave it to readers to consider whether the fatal coup of the D&E would be a safer procedure for the woman if performed when the foetus is mostly out of the birth canal and the critical anatomical landmarks can be seen, or whether it is safer to use long scissors and forceps by feel with the foetus high up in the birth canal and surrounded by a tight ball of uterine muscle.
10 People have left comments on this post
You’re starting from a false premise, that the Supreme Court has “criminalized” this procedure. Congress made the decision to criminalize the procedure. Most of your argument goes to whether that was a bad policy decision by Congress (including the 17 Democrats in the Senate who voted for it). But the Supreme Court is not there to second guess policy judgments. The only issue for the Supreme Court was whether the Constitution guarantees the right to perform this particular procedure.
The Supreme Court held that the statute is not facially invalid, but may ultimately prove invalid as applied, if it is shown that in individual cases it is detrimental to women’s health. This does not ignore medical evidence. The court was not trying to decide the medical question of whether the iD&E procedure is ever necessary, as opposed to the other available alternatives. The Court expressly recognized that medical opinion is divided on that question, and left it to future cases to resolve the issue based on specific facts presented.
I can only find two criticisms in your post of the Supreme Court’s legal analysis. First, you quote from Charo that this is a “singular” case in that the Supreme Court ignored the findings of multiple state trial courts. This is laughable. The Supreme Court could not possibly care less about state trial court findings in other cases. The Court doesn’t much care about federal trial court findings, and often disregards federal circuit court findings. I say this from experience — I won a case in the Supreme Court on an argument that had previously been rejected by literally thousands of lower court cases.
You complain at length that the Supreme Court opinion is emotionally charged. You are correct. (Although I don’t understand your assertion that the gruesome procedure described is legal under the Act. The nurse’s testimony was that the baby’s — I suppose we should say the “fetus’s”; it wouldn’t be a “baby” until many seconds later — arms and torso emerged before it was killed, which is illegal under the Act.) Both the conservative and liberal members of the Supreme Court consistently indulge in rhetorical devices in their opinions, including appealing to emotion. Anyone who expects Supreme Court opinions to state the issues in an entirely objective and unbiased manner has not read many Supreme Court opinions.
Aaron, with due respect, you seem to be misreading a lot of what I’m writing.
I thought I made it very clear that this post dealt with the medical aspects of the case, not the legal side.
You say that the Court did not criminalise the procedure, Congress did. Sure. But Congress’s Bill was overturned before and this time around the Court allowed the Bill through. To say that the Court did not therefore criminalise iD&E is the sort of hair-splitting that needs an electron microscope and a laser scalpel.
You say that Charo criticises the Court for overturning state decisions. But that is not what Charo says. Of course the Supreme Court is a higher court and therefore will overturn state findings on a regular basis. But Charo criticises the court for relying on evidence that was factually incorrect. This seems to me to be a perfectly fair criticism. The fact that this evidence of error came out of state trials seems to me to be irrelevant. The Supreme Court may be a higher court in the legal hierarchy, but I fail to see how factuality can be overturned on the basis that it was demonstrated in a lower court.
Again, you did not read me very carefully about the legality of the procedure. I said that what Dr Haskell did would have been perfectly legal if the foetus had been killed while still in the birth canal. I could have worded it better — and I’ll go back and reword it soon — but the meaning is exactly correct, so I don’t find it a particularly useful observation.
And yes, I am complaining about the emotional tone of the majority opinion. It is not that the opinion is emotional per se, it is the choice of emotive material that is inappropriate, especially as this particular quote was misleading in the first place and presented in such a way as to make it even more misleading than the original testimony. You’re correct that I don’t read a lot of US Supreme Court judgements, but it seems to me that using dishonest rhetorical devices deserves condemnation. And if the Court’s justices “consistently indulge” in such devices then I would have called this a grave cause for concern, not an absolving factor.
I’m sorry that I misunderstood you, Chris.
Whether it was a good idea to pass this statute and whether the Supreme Court should have struck it down as unconstitutional are two very different issues. I thought your post was intended as a criticism of the Supreme Court, which goes to the second issue. If your real complaint is simply that you don’t like the statute, that goes to the first issue, which I have no interest in debating.
Hi, Aaron.
Don’t worry about jumping down my throat. It’s been jumped down so many times I have stretch marks on my larynx. It’s a pleasant change to talk about these issues without it degenerating into a flamewar.
As for the statute vs. the Court ruling, well, I don’t like either. Could you tell? These are two separate issues, and I’m glad not to have to debate the former because, frankly, I’m sick of hearing the same old arguments go around and around and around to little persuasive effect. Whether or not the Bill is constitutional in US law is obviously not my area of expertise, and I readily acknowledge that there are many bad laws in democracies all around the world that are nevertheless constitutional. I am still deeply concerned about the way the majority opinion is framed, and I’m particularly concerned about the justices’ cavalier approach to difficult issues.
If they had said, “the issues are complex and it is not our place to resolve them, but the Bill is constitutional,” then I would still be unhappy with the outcome but could respect the decision and leave it to a more liberal Congress to overturn the legislation. What I see instead can be summarised as “the issues are complex, and in this complex situation, we choose to dismiss arguments we don’t like without grappling with them, rely in part on evidence that has been demonstrated to be factually erroneous, replace the well-established health exclusion with the undefined ‘life-threatening’ standard (which is not as unambiguous as the justices would like to think), redefine ‘undue burden’ to be useless in any practical sense (as if a woman who might benefit from an iD&E has the time, money, or emotional capacity to take on a major legal adventure to get permission beforehand), and quote dubious rhetoric, edited to be outright propagandist, sometimes on aspects of the case that have no bearing whatsoever to the issue of the Bill’s constitutionality.”
Whether the majority justices (or the minority justices for that matter) are acting within accepted legal principles is a judgement better left to people with a firm grasp of US constitutional law. But if these are accepted principles, then the legal system is in dire need of a culture change.
I appreciate you keeping the discussion civil as well.
As to whether the American legal system is in dire need of a culture change, I definitely can’t debate you about that!
Aaron, can you tell me a little about your experience in winning a Supreme Court case? I can’t say I know many people who can say they’ve been in that situation.
Well, you may be able to guess from how quick I was to volunteer that fact that it isn’t difficult to get me to boast about my Supreme Court experiences.
I’ve been to the Supreme Court twice, both times after the Court granted a petittion for writ of certiorari that I wrote. That’s the real bragging point — the Supreme Court only grants about 1 out of 50 of the petitions it receives.
The first case was a securities fraud case (Central Bank of Denver v. First Interstate Bank). I wrote the briefs, then sat at counsel table while my boss presented the oral argument (best seat in the house!). That’s the one in which we argued that the Supreme Court should read the securities fraud statute differently than every other American court since 1934 had read it, and by a 5-4 decision they did.
In the second case, I wrote the briefs and this time got to argue it myself. It was a disability discrimination case (Sutton v. United Air Lines), and I was arguing for a broad interpretation of the Americans with Disabilities Act, which was a tough sell to the Court. Justice Scalia was on the attack the whole time. I honestly thought I won the argument with him and showed that his position was illogical, but he got the last laugh. I lost on a 7-2 decision.
Cases are really won and lost on the briefs, but the oral argument is the most fun part of the process. The atmosphere at the Supreme Court is much more formal and forbidding than any other American courtroom — even in the gallery, someone will tap the back of your chair if you’re not sitting up straight.
You only have 30 minutes to make your argument, which evaporates in a hurry, because the justices fire questions at you non-stop the whole time. I’ve listened to old oral arguments from major cases like Roe v. Wade and Brown v. Board of Education, and it used to be that the justices would actually let the lawyers talk for a while and be orators, which made me envious. These days it’s just rapid-fire questioning and you have to try to weave your key points into your one- and two-sentence answers. Incidentally, Justice Thomas has said publicly that he preferred the old way, which is why he seldom asks questions in oral argument, but many people still assume it’s because he is stupid.
None of the Supreme Court justices is stupid. I have argued in many courts, and there are usually at least a couple questions that go off on a tanget, and you have to explain to the judge why that’s not really the issue. At the Supreme Court, every question goes right to the heart of the matter. Of course, having a staff of clerks all of whom are #1 in their classes at the top law schools doesn’t hurt.
The best part about the Supreme Court experience is that I used it in a story that recently appeared in Farah Mendlesohn’s anthology Glorifying Terrorism. I have a long way to go to catch up to you, Chris, but it’s a start.
Aaron, have you ever considered the fact that you lost 7-2 *because* you showed Scalia was being illogical?
And I agree with you — none of the Supreme Court judges is an idiot. My difference with Scalia and Thomas in particular is based on their moral philosophy, not their lack of brainpower. If anything, it’s the combination of high intelligence and rigid moralism that I find so distasteful.
Can I recommend a book to you? Last year I read a history of the Nazi sabotage plot in America called, amazingly, “Saboteurs: The Nazi Raid on America” by Michael Dobbs. It starts out like a standard espionage tale but quickly blossoms into a nuanced study of American criminal law with precedents that have big repercussions today.
And there’s no need for modesty. Mendelsohn’s anthology is a really cool place to be published. Anyone with a semi-professional sale is already in the top percentile of writers.
I think it was Melinda Snodgrass who pointed out that according to IRS data, there are more people whose primary occupation is listed as Senator than Author. As someone who has already taken on the Supreme Court twice, are you sure this is a smart career move? :-)
Thanks for the recommendation. I’ll look for that Michael Dobbs book.
Switching to writing full-time would definitely not be a wise career move, but I’d do it if I thought I had the talent. As it is, I’ll be happy if I can just sell one or two more stories some time.
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