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Supreme Court to Rule on Partial Birth Abortion

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With two new relatively conservative Supreme Court nominees finally seated, the crisis which many have expected is upon us as the court prepares to hear and rule on an administration challenge to lower court decisions which overturned the 2003 law banning ‘partial birth abortion’ nationwide.

The Supreme Court has previously ruled against similar state bans like the one passed in Nebraska on the basis that they didn not include exemptions to allow for abortions if it was deemed necessary in order to save the life of the mother.

Partial Birth Abortion is the popular term for the “Intact Dilation and Extraction” procedure pioneered by Dr. Martin Haskell in the late 1980s. It is a process whereby a late term pregnancy is terminated by chemically inducing dilation of the cervix and removing the fetus vaginally. Before extraction is complete the skull is punctured and then collapsed by vacuuming out the brain, making forced extraction of the fetus easier.

This method is used only in pregnancies in the fifth month or later and most commonly with fetuses who have gross genetic abnormalities, particularly hydrocephaly which usually results in death either before or shortly after birth and presents some danger to the mother in the delivery process. However, use of this technique is not limited to medical necessity and it can be performed for purposes of elective abortion. Abortions of this sort are extremely rare, less than .2% of all abortions performed nationwide, which totals less than 3000 cases a year.

The practice is condemned by many as unethical, because a late-term fetus stands a good chance of living outside the womb with only minimal medical support, and because the partial delivery of a potentially viable baby followed by direct termination of life by the doctor seems much more like infanticide than abortion of a non-viable fetus.

This form of abortion draws objections not only from those who oppose all abortions on principle, but also from many medical ethicists who believe that life begins at the point where a baby could be delivered and live on its own without artificial life support. Since this type of abortion can theoretically be applied up to the point of natural birth that puts it in a very controversial ethical gray area. The counter-argument is that there is a legitimate need for this sort of procedure in cases of hydrocephaly which cannot be diagnosed until after the 5th month and which both presents real risks to the mother and also a best case outcome of a grossly deformed and brain damaged baby.

The 2003 law which will go before the Supreme Court is different from previous bans which were struck down because it does include a provision to allow the procedure when the mother’s life is in danger. Critics say that this provision is not sufficiently broad as it doesn’t allow for abortion in cases where there is concern for the quality of life of the baby or the general physical and mental health of the mother. The law is also controversial because it provides for a 2 year jail term for doctors carrying out the procedure. The current law was struck down by courts in three different states before it was taken to the Supreme Court.

As the Supreme Court is currently configured there are four justices (Souter, Kennedy, Ginsberg and Stevens) who voted to strike down the previous Partial Birth Abortion laws to come before the court, three who voted to support the ban (Scalia, Thomas and Breyer) plus the two new justices (Roberts and Alito) whose positions are unclear. The concern of those who oppose the ban is that both of the new justices will vote against them and the law will be upheld. Their best hope is that the new justices stated belief in the importance of precedence will prompt at lest one of them to follow the pattern of the prior cases, producing a 5-4 decision against the ban.

This decision is being seen as by both sides in the controversy as a first step towards overturning Roe vs. Wade and banning all abortion, but this perspective is unrealistic and basically scaremongering to stir up outrage among the constituencies of pro and anti abortion groups. This type of abortion is significantly different from the much more common early term procedures and there is no logical reason to believe that a support of the ban would indicate any change in position on less extreme forms of abortion. Partial Birth Abortion raises medical ethical issues about the viability of the aborted fetus which are not at issue with other forms of abortion, but it also serves a legitimate medical purpsose and is not generally used for true elective abortion.

The rational policy course is clearly to seek to minimize the instances of this sort of abortion, but to make sure that it remains available in cases of medical need. Unfortunately the law currently going before the Supreme Court doesn’t quite meet that standard, because it doesn’t sufficiently define the instances in which the procedure is medically necessary. The ideal solution is for the court to uphold the ban, but use their decision to clearly define the medical circumstances where exceptions should apply and define them broadly enough that only elective abortions after the 5th month would be prohibited. The court has made rulings where they redefined or explained laws in the past, but the current court may be hesitant to do so because of the appearance of legislating from the bench. If that is a concern then the most sensible course would be to strike down the law and send it back to Congress so that they can redefine the medical circumstances in which the procedure would be legitimate.

Whatever the ultimate outcome this is clearly a test for the court, to see if they are willing to step in and be a little proactive to solve a problem that they are in a unique position to deal with, or whether they will play it safe and pass the buck back to Congress, or in the ultimate scenario uphold the ban, sending a clear message that with their new members the court is going to lean as conservative as many on the left have accused them of being.

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About Dave Nalle

  • lumpy

    Refardless of how this case comes out, it’s past time for the federal government to butt out of the abortion issue and leave it entirely in the hands of the states as it always should have been.

  • http://www.futonreport.net/ Matthew T. Sussman

    Before the major abortion players around BC infiltrate the premises, let me just say I thought of the perfect horrible joke pertaining to this topic. I should whip up a Puddle of Suss this week.

  • http://www.roblogpolitics.blogspot.com RJ Elliott

    “This decision is being seen as by both sides in the controversy as a first step towards overturning Roe vs. Wade and banning all abortion”

    Sigh…

    Overturning Roe v. Wade would NOT “ban all abortion”…it would merely turn the matter over to the states, which would then decide, democratically, whether or not to allow abortions within their borders…

  • Dave Nalle

    RJ, read my sentence more carefully. I know and you know that overturning Roe wouldn’t ban abortions much of anywhere, but my point was that both sides are treating this decision as a first step towards that goal, either for positively or negatively, when it’s actually not even that. There’s no reason to believe that this particular decision would lead to the overturning of Roe because there’s really no relationship between banning this particular procedure and the overall fate of abortion.

    Dave

  • http://musical-guru.blogspot.com Michael J. West

    Moreover, Roe v. Wade specifically allows the state to have some discretion over second- and third-trimester abortions. It was future legislations and court cases that established late-term abortion as a viable precedent.

    In other words, not only is there no relationship between banning this procedure and the overall fate of abortion, but there is no direct relationship between this procedure and Roe v. Wade.

  • http://beyondbabylon.blogspot.com David Ben-Ariel

    Abortion is premeditated murder and must be treated as such. Those cold and calloused abortionists, with their desensitized accomplices who engage in such a grisly industry, know exactly what they’re doing as they see the bloody results, the human remains, the evidence against them — especially when such atrocities are committed against fully developed BABIES.

    May God grant repentance and wisdom to our Supreme Court and may they humbly accept and use it for the life of our nation and people.

    America: don’t abort your future!

  • Bing

    Partial birth without a doubt is murder.

    Now that we have Roberts and Alito on the court maybe Satan’s Little Helpers (Planned Parenthood) will be stopped from performing it.

    I only have one thing to say to you left wing douchebags who want to offer up bullshit arguments about “choice” or “women’s health.”

    I suggest you watch a video of a partial birth abortion being performed and then tell me it’s not murder.

  • lumpy

    abortion is NOT murder, even in the case of partial birth abortion. it may be bad and it may be killing, but it lacks the malicious intent which is an essential part of the definition of murder. it falls in the same category of morally justifiable homicide as executions and killing an enemy in battle, where larger issues like the good of society override the simplistic moralism of ‘thou shalt not kill’.

    if you oppose abortion and support justified warfare, state execution or even oppose socialized medicine then you are a hypocrite.

  • Bing

    If you want to play semantics I guess it’s not murder technically.

    However I disagree with your assertion that if you oppose abortion and support justified warfare, state execution or even oppose socialized medicine then you are a hypocrite.”

    In warfare there is a threat posed to society in general as viewed by each side. The soldiers on each side intend to do harm to the other. In the case of most abortions, the baby actually being born does not pose a threat to anyone. The baby has neither the desire nor intention to do harm to anyone.

    Executions are a form of punishment for an individual who has committed horrific crimes (mostly murder) against other innocent people. An unborn baby is an innocent who hasn’t even had the opportunity to do such things or even anything else much less dramatic and therefore shouldn’t be punished by being killed.

  • Dave Nalle

    I think it’s pretty easy to argue that each child raised by a teenage mother with no father is a potential threat to society, Bing. Certainly as much as Iraqis are.

    Dave

  • http://www.roblogpolitics.blogspot.com RJ Elliott

    “I think it’s pretty easy to argue that each child raised by a teenage mother with no father is a potential threat to society, Bing.”

    Well…we don’t kill people (or even incarcerate people) simply because they are statistically likely to be “threats” in the future.

    I hate to go all Bill Bennett on ya’ll, but if we are to take a “pre-emptive” approach to such “threats” we might as well lock up every black male in the country from the ages of 16 to 29 in a Super-Max prison right now…you know, based on statistics from the FBI’s UCR…

    And, of course, that would be ludicrous…

    PS – I’ve been a little tough on DN the last couple days…but I still lova ya, man! :-]

  • Dave Nalle

    I hate to go all Bill Bennett on ya’ll, but if we are to take a “pre-emptive” approach to such “threats” we might as well lock up every black male in the country from the ages of 16 to 29 in a Super-Max prison right now…you know, based on statistics from the FBI’s UCR…

    Odd, RJ. I thought we were already doing that.

    As for the whole fetus massacre issue, it’s pretty simple. If it can’t live on it’s own outside the womb it’s not a person and has no rights. If it can then it’s got some rights. Only sensible way to deal with it.

    Dave

  • Bing

    So by your logic Nalle if a person is injured in a car accident and temporaily needs machine support to survive then we should just kill them?

    Partial birth abortions are done late in the pregnancy and in the vast majority of cases the child is viable outside the womb. That’s why they call it partial birth. The baby is partially delivered and then it’s skull is crushed. Anyone who would defend this procedure for any reason other than saving the mother’s life is an abomination to humanity and deserves to rot in hell for eternity.

  • http://www.diablog.us Dave Nalle

    Bing, do you actually read the stuff you respond to? Your position on partial birth abortion and mine are essentially the same.

    As for the person needing medical support after an accident, it’s a bogus comparison since there’s no ground for comparison between a fetus and a proven, living person who is temporarily in need of assistance.

    Dave

  • http://alienboysworld.blogspot.com/ Christopher Rose

    That, and the fact that there ain’t no hell to rot in.

    Really, Bing, unless you just want to flame people from the safety of your computer, you really need to stretch the old brain a bit more and leave these hysterical overstatements behind; it does neither your cause nor your credibility any good.

    A little more civility would be nice too; then I wouldn’t have to keep thinking about whether to edit your remarks, simply engage with them…

  • Bing

    If I can’t get hysterical about infanticide what am I allowed to get hysterical about Christopher?

    The people I critisize are murdering thousands of innocent babies every day and I’m the one who needs to be civil?

    Give me a friggin break!

    As for you Nalle, I consider it a person even when it is inside the womb so to me it is a logical comparison.

  • http://alienboysworld.blogspot.com/ Christopher Rose

    I’m sorry Bing, but it’s not like that. Even if I were to accept that abortion = infanticide, which I don’t, it would still come down to making a democratic choice by the people within the framework of freedoms established by both the European and US Constitutions.

    You simply don’t have the either the moral or legal right to interfere in others’ lives the way you appear to seek. The image it conjures, of some freaky agency spying on (pregnant) women, forcing them to bear children every single time they conceive, regardless of their life situation, is just as repellent as your dramatic, if overstated and not a little manipulative, imagery above.

  • Nancy

    Bing’s would-be world has already been written about in ‘The Handmaid’s Tale’, I believe.

  • http://www.roblogpolitics.blogspot.com RJ Elliott

    “there’s no ground for comparison between a fetus and a proven, living person who is temporarily in need of assistance.”

    A fetus is, actually, a “living person” who is “temporarily in need of assistance” (from it’s mother) in order to live…

  • http://www.roblogpolitics.blogspot.com RJ Elliott

    By the way, here’s an idea that would, if implemented, go a LONG way towards making this entire issue moot:

    MAKE THE “MORNING-AFTER PILL” AVAILABLE OVER-THE-COUNTER!

    No babies/fetuses are killed by the “morning-after pill” (unlike RU-486), and women could prevent just about ALL unwanted pregnancies by using this simple drug…

    No unwanted pregnancies = no need for abortion, partial-birth or otherwise…

  • gonzo marx

    well RJ, you and i AGREE!!

    i said this months ago, right after the report was made available that the Bush appointed head of the FDA shot the entire process down BEFORE the scientific studies were even scheduled to be done

    nice huh?

    i totally agree it woudl make 90% of the entire “abortion argument” go away in a week end

    and that might just be the problem

    add to that the new “law” being rammed through in South Dakota, whcih states that Life begins at fertilization!!!!

    that’s right kiddies, yer human as soon as the sperm pierces that egg

    now THAT one will be a real test , if it passes, for SCOTUS

    fucking idiots

    Excelsior!

  • Dave Nalle

    A fetus is, actually, a “living person” who is “temporarily in need of assistance” (from it’s mother) in order to live…

    No, RJ. It’s a potential living person. Having no history of autonomous existence it has no real claim to the status of ever having been a self-aware and fully functional human being.

    And Bing, even if you’re saving the world one mass of protoplasm at a time people will still take you more seriously if you don’t sound like a raving psycho.

    And RJ has the best point in #20. Any right-to-lifer who doesn’t support the morning after pill – which from what I’ve seen is most of them – loses all credibility and can go join the Pope’s anti-condom crusade.

    Dave

  • http://www.roblogpolitics.blogspot.com RJ Elliott

    I tend to be more sympathetic to the pro-life side than the pro-choice side…but on the issue of the morning-after pill, the anti-birth control extremists on the pro-life side are DEAD wrong (pardon the pun).

    Preventing a sperm from fertilizing an egg is NOT at all akin to killing an unborn baby by sucking its brains out with a glorified vacuum cleaner.

    I would like to think that BOTH sides of this issue could come together and agree that preventing unwanted pregnancies is the best way to deal with this for everybody involved. Sadly, I suspect some on the pro-life side would rather have the problem (for use in political debates and direct-mail solicitations) than the solution…

  • http://www.elitistpig.com Dave Nalle

    How right you are on that last point, RJ.

    Dave

  • CC

    [I only have one thing to say to you left wing douchebags who want to offer up bullshit arguments about “choice” or “women’s health.”
    I suggest you watch a video of a partial birth abortion being performed and then tell me it’s not murder.]

    And I suggest you hold the hand of a woman dying of sepsis or any other illegal botched abortion procedure and tell me you would not think this issue is so black and white.

  • CC

    OT:
    [I hate to go all Bill Bennett on ya’ll, but if we are to take a “pre-emptive” approach to such “threats” we might as well lock up every black male in the country from the ages of 16 to 29 in a Super-Max prison right now…you know, based on statistics from the FBI’s UCR…]

    Why black men? Actually, according to shear numbers of crimes committed, white males are the largest perpetrators…so we should lock all of them up. If you are just going for numbers that is.
    And, of course, that would be ludicrous…

  • CC

    #20
    Very true, however many anti-choicers (noticed I DID NOT say pro-lifers) want to make that and regular birth control unavailable. So I hope you are advocating this on their posts as well- b/c I can’t get ‘em to see that logic.

    Bing- so even the ‘thought’ of not supporting a ban on late-term abortion renders someone deserving to rot in hell? interesting…
    so now we are legislating thoughts as well.

    #22 Don’t even bother to argue with them on that point, Mr. Nalle- you’ll never get anywhere.

    #23 I think both sides agree on that point, however, the WAY to get there is the issue. Unfortunately for pro-lifers, their tactics of telling people sex is immoral and abstinance is the only way to go is not working for most of the world…except in dreamy dreamy land.

  • Dave Nalle

    CC. I realize that fanaticism exempts you from actually reading the article OR the comments, but I don’t believe anyone here is actually supporting on-demand Partial Birth Abortion.

    Dave

  • Bliffle

    What does ‘partial birth’ mean? Is the baby actually being born and leaving the birth canal?

  • http://www.elitistpig.com Dave Nalle

    Yes,Bliffle. As explained in the article they bring almost all of the baby out of the mother vaginally before killing it.

    Dave

  • CC

    #23 Fanaticism? LOL Why the hostility & name-calling BTW? I fully realize no one supports that fact & never did I say that. I have read the article & comments and have offered my opinions/interpretations. My guess is- you don’t agree with the way I choose to express myself & have therefore attempted to belittle my comments with a cheesy one sentence shrug off insult. What the hell?

    The only thing I can think of is you misunderstood my comment to you. For pro-lifers, they never can get beyond whether the fetus is/isn’t a human life & that argument tends to be counterproductive- was all I was trying to say. I was trying to be supportive of your comments. But ‘thanks’ for the hostility.

    Do you always make the habit of alienating the readers of your articles? Seems so in most of your comments to the posters. Since you are such a bad host I will bow out of this lame ass party.

  • Dave Nalle

    Sorry, CC. My fanaticism comment was mistakenly directed at you because of the weird way you quoted Bing. On going back over it I figured out that it was Bing’s comment #7 which I was actually responding to. Read it over and tell me if I was wrong.

    Dave

  • CC

    Dave- not really sure what you are asking me to look over, my response to Bing’s #7 in my #25- but I don’t think its weird. I guess it was a misunderstanding. *shrug*

  • http://www.elitistpig.com Dave Nalle

    Most people use italics or block quotes or something to set of quotes, not brackets, so I didn’t quite figure out what was going on – that was the weird part.

    But aside from that we seem to more or less agree.

    Dave

  • http://www.roblogpolitics.blogspot.com RJ Elliott

    [I hate to go all Bill Bennett on ya’ll, but if we are to take a “pre-emptive” approach to such “threats” we might as well lock up every black male in the country from the ages of 16 to 29 in a Super-Max prison right now…you know, based on statistics from the FBI’s UCR…]

    Why black men? Actually, according to shear numbers of crimes committed, white males are the largest perpetrators…so we should lock all of them up.

    Statistics are a bitch.

    Sure, most crimes are committed by white men. But white men make up like 35% of the population, roughly.

    But black men commit more crimes, PER CAPITA, than white men. The reason they don’t commit more crimes overall is because they comprise only 6% of the population, roughly.

    But I don’t really want this discussion to go off on a tangent on this subject…

  • CC

    Dave- ya, I haven’t quite figured out the italics or block quotes thing yet. I’ll work on that.

    RJ- Yep, I understand how stats work, but if money was no object & we just wanted to lock up the most criminals, let go for the white dudes.

  • SonnyD

    Dave: In the sixth paragraph, next to the last line, did you intend the use of the word “prevents” or did you mean “presents”?

  • http://www.elitistpig.com Dave Nalle

    Ooh, good catch, SD. The spellchecker and grammar checker wouldn’t have gotten that one.

    Dave

  • Mark

    Hahahah, I like how this thread degenerated from actual discussion into insightful comments about the efficency of spellcheckers.

    Abortion is murder. Life begins at fertilization, so even the morning after pill is an abortifacient. Its wrong to kill human beings…even when they’re inconvenient. Bing is right. Partial birth abortion is simply the most obvious demonstration of all abortions true nature. It disrespects life and murders children. Stop it.

  • Dave Nalle

    Mark, you didn’t exactly raise the level with your meaningless knee-jerk dogmatism.

    Dave

  • http://alienboysworld.blogspot.com/ Christopher Rose

    The cold hard facts are that abortion, like meat eating, is indeed a kind of murder but that the needs and desires of the currently living are more important than the as-yet unborn so it’s okay, if always sad.

    There seems little need to add the kind of inaccurate and provocative remarks that Mark sometimes goes for, although his passion for the very real (secular) miracle of life is itself worthy of respect.

  • http://www.elitistpig.com Dave Nalle

    Maybe if we followed the principle of hunters who only kill what they eat when it comes to abortion….

    Not literally, but putting the fetuses to use in stem cell research falls into the same general category as eating the deer you shoot.

    Dave

  • CC

    Actually, the so-called morning after pill or emergency contraception works much in the same way as the traditional birth control pill, it PREVENTS conception in the first place the majority of the time. For those of you who do not care to learn the actual facts of EC- take care you do not confuse it with RU-486 the abortion pill. Not one in the same.

    Stick with your original plan and go after abortion- the more you go after birth control, the more resistence you will have by mainstream people.

  • Dave Nalle

    Good point there, CC. At the very least it would be nice to see some of the rabid anti-abortionists acknowledge this. It would make them seem just a little less crazy, since things which prevent conception ought to advance their baby-saving interests.

    Dave

  • But wait! Two years later……

    The morning after pill, (which PREVENTS conception and does NOT cause spontaneous abortion as some have pointed out) IS available OTC. It’s kept behind the pharmacy counter but does not require prescription. Hopefully this will nearly eliminate the excuse of failed BC as a reason for abortion!

  • alli

    #10 “I think it’s pretty easy to argue that each child raised by a teenage mother with no father is a potential threat to society, Bing. Certainly as much as Iraqis are.”

    Dave, I doubt our President-elect agrees with you…

  • Sceptical Sue

    You know, I’m not even sure ‘partial birth abortion’ is actually a real procedure. Why? To reach into the vagina and uterus of a pregnant woman who is full term or nearly so and grab a leg and pull the fetus out to the shoulders seems impossible. The baby is usually head down at this point so it would involve turning the baby. Believe me, that isn’t easily accomplished. Then to locate the both legs in a cramped uterus, line them up, yank them out through a cervix that is artificially dilated? You’d break the woman’s pelvis. Something ain’t right, here.