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Partial Birth Abortion ban in Supreme Court

7:45 am on Thursday, November 9, 2006

SFGate.com

Two hours of oral argument on a federal “partial birth” abortion ban at the Supreme Court on Wednesday showed that the justices are intensely focused on the procedure’s medical details and health implications — but produced few clues as to how they might rule.

The article contains what I think is an interesting legal and constitutional question, raised by Justice Kennedy:

At one point, Kennedy, who dissented when the court struck down a similar state ban in 2000, repeated a concern he voiced in that case. “Your argument,” he told Priscilla Smith, a lawyer for doctors challenging the law, “is that there is always a constitutional right to use what the physician thinks is the safest procedure.”

The 2005 Decision on medical marijuana seems to undercut that arguement to me.  I find this argument interesting because one could accept the ‘facts’ that both sides present, on the anti-abortion side that intact dialation and extraction is a gruesome procedure, more akin to infanticide than to other abortions, and the argument from the pro-abortion side that this is sometimes the best medical choice to make and still arrive at a variety of decisions based upon how you determine this ethical question.

Some other, wider ranging, permutations might apply as well.   For example, one can easily imagine that the safest and best medical treatment from an individuals point of view might be cloned body parts.  If a ban on human cloning prevented these organs from being obtained, does that violate an individuals right to the ’safest’ procedure?  I expect that few of the sitting Justices would agree.  Certainly I am sure that none of them would agree that one as a ‘right’ to obtain needed organs from someone without their consent, even if those organs would be safest.

I happen to be pretty skeptical of the notion that partial birth abortion is medically necessary.  In addition, I think that their is a point before birth, but well after conception, in which we should begin extending some of the rights that we grant other human life.  A fetus is of a different class than an organ or a tumor.  At the same time, it is worthy of remembering that a fetus presents a special challenge by automatically intruding upon the autonomy of the mother, and unlike a baby this dependence cannot be transferred to another.  It is an ethically difficult subject, and crafting legal opinions that will reflect that properly would be difficult even absent the intense emotions surrounding the issue.  That said, I think that the partial birth abortion procedure lies enough to one side of the blurry gray line that I strongly support it being banned.

10 Comments »

Comment by probligo

November 9, 2006 @ 9:06 am

YES!!!

Comment by Bob Morris

November 10, 2006 @ 8:12 pm

I think a question that should be answered, at least from my vantage point, is this:

I do support abortion if the woman’s life is in danger. So the question I would ask is… at what point during a pregnancy can a doctor determine that the woman’s life is in danger?

If it can always be detected early, then it’s obviously not an issue when it concerns partial-birth abortions, since those happen in the late stages of a fetus’ development.

But if there are cases in which it can’t be determined until well into a woman’s pregnancy, then it becomes a much more complicated issue, at least in my eyes.

Of course, this only applies to a situation in which the woman’s life is in danger. I do not support partial birth abortions if a woman simply changes her mind at the last minute about having a baby.

Comment by probligo

November 11, 2006 @ 11:58 am

Bob, I agree. There will always be instances where abortion is necessary to save the live of the mother. To be clear also, I consider Partial Birth Abortion (PBA) to be abortion in the third trimester, and the technique involves stimulation of the birth process.

When it comes to PBA though there is another aspect that comes into play as well.

Ignore the abortion slant for a moment.

The survival rate of premature birth (30 weeks gestation and later) is almost 100%. The survival rate of premature birth 25 to 30 weeks is well in excess of 50%.

If the mother is at 25 weeks gestation or later, is abortion (as in killing the fetus) a necessary part of “saving the mother’s life”? Not in my book it is not. We have the knowledge and ability to save the lives of both. That is what we should support. That is why my “YES” in my first comment was intended to be so emphatic.

Do not get me wrong - I am NOT anti-abortion. Far from it! I am very definitely against third trimester abortion. And I say that knowing that there are exceptions (that I know of) where I would recant that statement.

Comment by Bob Morris

November 11, 2006 @ 2:18 pm

Probligo, thanks for the clarification. I agree… if procedures are available to save both the mother and the fetus, than that’s what should be done.

I will add one comment: I think the “pro-choice” folks who are worried about Roe v. Wade getting overturned shouldn’t worry, because I don’t see that ever happening. We may see restrictions on abortion, but it’s no different from how other things we either know are rights as spelled out in the Constitution, or we expect to be rights, are interpreted by the courts. And while people are free to agree or disagree with such decisions, I think it’s ultimately a good thing the courts offer such interpretations so people understand that with freedom comes responsibility and to take such responsibility.

Comment by Dave Justus

November 13, 2006 @ 6:22 am

Sadly, the situation here is a little bit more complex than either extreme. The law in question does permit this procedure if it is needed to save the life of the mother. And very few of even the most radical pro-abortion advocates agree with partial birth abortion as a means of birth control, most agree that there has been plenty of time for that choice to be made.

What is controversial is that while the law makes an exception for the life of the mother, it doesn’t make an exception for the health of the mother, a far more nebulous term. Those against abortion fear that ‘heath’ will equate to frivolous things, such as being depressed about having a baby (or a baby with problems) while those for this are concerned that grave damage, perhaps not death, but serious none the less will result to the woman.

Clouding this issue is widely varying, and almost certainly politically tainted, evidence from experts on both sides as to the necessity of the this procedure. One side claims it is never needed and there are always alternatives, the other that sometimes it is the only rational choice to make. Sorting that out quite difficult, and probably people will find confirmation of their beliefs no matter what they are.

However, if we take an ethical stance that a fetus at this stage of development has some rights as well, I think that health of the mother issues, where the health advantage over this procedure versus others seems to be quite slight, then I think that outlawing this procedure is reasonable and rational.

Comment by probligo

November 14, 2006 @ 9:09 am

“What is controversial is that while the law makes an exception for the life of the mother, it doesn’t make an exception for the health of the mother, a far more nebulous term.”

The point that is being made, Dave, is that PBA is NOT NECESSARY given that it involves killing the babe in the course of induced birth (as distinct from those very very rare occasions when things go horribly wrong.

The reason WHY PBA should not require the death of the babe is that survival of a 25 week fetus is reasonably routine in neo-natal facilities in this country and I would be extremely surprised if NZ was that far ahead of US in medical technology.

Take the fairly common situation where the mother develops health-threatening complications at 20 weeks - toxaemia, or very high blood pressure for example. It is routine - in NZ at least - to nurse that mother and fetus to the point where the babe has a reasonable chance of survival. Then they induce the birth. Or is that an abortion? The babe might be ten weeks premature, but it has a good chance of survival.

If a mother becomes suicidal, for example, then it might require consideration of an abortion - I don’t know because my medical knowledge doesn’t extend to niceties like that. But let us assume for the moment that it does, and that the only solution is abortion. The point being made is that after 25 weeks or thereabouts, the babe can survive. It might have been aborted, but that process should not require its death.

That is not complicated, or complex, or clouded.

PBA should not require the death of the fetus.

“…if we take an ethical stance that a fetus at this stage of development has some rights as well, I think that health of the mother issues, where the health advantage over this procedure versus others seems to be quite slight, then I think that outlawing this procedure is reasonable and rational. “

I find that really interesting Dave. The idea of “rights” had never ever entered my mind.

It is the ethics of what is possible, what is required, first. We can do this, so the question of comparative rights should not, ever, arise.

Comment by Dave Justus

November 14, 2006 @ 9:49 am

“The point that is being made, Dave, is that PBA is NOT NECESSARY given that it involves killing the babe in the course of induced birth (as distinct from those very very rare occasions when things go horribly wrong.”

I happen to agree with you, but this is a point of great controversy.

“PBA should not require the death of the fetus.”

Abortion, by definition requires the death of the fetus. If the fetus doesn’t die, it isn’t an abortion.

“I find that really interesting Dave. The idea of “rights” had never ever entered my mind.

It is the ethics of what is possible, what is required, first. We can do this, so the question of comparative rights should not, ever, arise.”

That seems curious to me. If the fetus has no ‘rights,’ but is simply a lump of tissue then their can be no ethical reason to prevent a woman and her doctor from doing anything they feel is best with that tissue.

Comment by probligo

November 14, 2006 @ 3:15 pm

Dave, just for once try turning something round and looking from a different angle -

What right have I, or you, to take any right from another person. OK so we get into the semantics of whether a fetus is a person or not.

What strikes me most is that this conflict of ethics and morality with practicality seems to be a far greater problem in the nation that holds itself out as the epitome and leading light of freedom whilst it still retains state murder as a “justifed” part of judicial punishment.

As you have so ably illustrated, the difference between PBA and induced birth is very little more than semantics. Yes, the intent in PBA might be to kill the fetus. The intent in induced birth is not. The medical technique to achieve either is identical, with the only difference being the use of a scalpel or other instrument at a critical point.

It is not, as I see it, the intent that makes the difference between the two.

The fact is that abortion or induced birth at, say, 28 weeks produces a viable person.

The fact is that induced birth or abortion at 12 weeks, given the current stage of our present technology, does NOT produce a viable person. When our neo-natal technology has reached the level of that foreseen in Huxley’s “Brave New World”, then I will personally shift my own parameters on the ethics of abortion.

The NZ solution has been legislation that is now 22 years old; that has been subject to public scrutiny twice now; that has remained largely unchanged, and unchallenged over that period. That legislation sets the parameters for abortion, what is acceptable, what is not, the process, the restrictions, and the rights.

Not everyone is happy with it. There are some who believe it is too liberal, that it allows abortion on demand. They are generally the people who think that they have the right to tell others how to live their lives. There are some who believe that it is unneccessary legislation, that there should be no restraint other than personal choice. They are generally silent on the matter, prepared to accept that what we got is workable. Personally, the law we have is fine by me. It meets my personal beliefs and ethics.

There are far greater things in this world to be worried about.

Comment by Dave Justus

November 15, 2006 @ 1:23 pm

I am not sure what you are castigating me for here Probligo. We both agree in the main on this.

I also use viability as a key benchmark when looking at the morality of abortion.

The only difference is that I am presenting the counter arguements as accurately as I can.

It is a weird twist that the U.S., usually more ‘conservative’ than other industrialized nations has some of the most premissive laws on abortion. This is, in the main, the fallout of Roe v. Wade and the fact that for us the issue was decided in court, rather than through the legislature. I expect that if Roe v. Wade had gone differently, we would have much more of a compromise.

Comment by probligo

November 15, 2006 @ 5:25 pm

SOrry Dave, I didn’t think I was castigating you. OK, I started that last comment with the suggestion that you take a look from a different perspective. I wrote that in a moment of exasperation. I also suffer the debating defects of being short, blunt, and honest. Sorry if that is what you took offence to, it was not intended…

I guess that RvW, taking your last comment, would be proof certain of the dangers of having law made by the Courts instead of by the legislature. I guess that is something I have to be grateful for.

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