Rhetoric trumps Law in US Supreme Court

The United States Supreme Court upheld the US wide and misnamed partial birth abortion ban in a 5 - 4 decision which reads less like law and more like a political statement.

The decision, the first in which the court has upheld a ban on a specific method of abortion, means that doctors who perform the prohibited procedure may face criminal prosecution, fines and up to two years in prison. The federal law, enacted in 2003, had been blocked from taking effect by the lower court rulings that the Supreme Court overturned.

The widely held view was that there was no way the existing US Supreme Court wouldn't find in favour of the ban, but it was the rhetoric included in the ruling which should give American women pause. The hostility and paternalistic tone of the language was so severe that, in her dissenting opinion, Supreme Court Justice Ruth Bader Ginsburg felt compelled to point out that terminology and phraseology appeared to be based in hostility towards women, medical doctors and scientific knowledge.

ThinkProgress has extracted some of the more vile portions of the US Supreme Court decison which was written by Justice Anthony Kennedy and joined by Roberts, Alito, Scalia and Thomas.

Abortion methods vary depending to some extent on the preferences of the physician and, of course, on the term of the pregnancy and the resulting stage of the unborn child’s development. (p. 3)

The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community. (p. 33)

When standard medical options are available, mere convenience does not suffice to displace them. (p. 37)

Hardly the kind of terminology one would expect to find in a legal rendering from the highest court in the United States. Ginsburg pointed out what she saw in the opinion:

The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician- gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” A fetus is described as an “”unborn child,”” and as a “”baby,” second-trimester, dissenting previability abortions are referred to as ““late-term,” and the reasoned medical judgments of highly trained doctors are dismissed as “”preferences”” motivated by ““mere convenience.”

From the US Supreme Court decision, Ginsburg provides:

Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.

In short, the conservative men of the US Supreme Court have stepped over the line. Previous decisions had established that a woman had the right to seek a previability abortion without interference from the state. It was only after the fetus became viable that the state could intervene. This decision allows the state to intervene on abortions in the second trimester, before the fetus is viable.

Further, where there was previous legal precedence that any state regulation on access to abortion procedures, whether previability or postviability, required that any law must include provisions which clearly state the "health of the woman" takes precedence. The ruling handed down today actually rejects that provision in clear language by stating that it is not necessary.

In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court’s defense of the statute provides no saving explanation. In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court —and with increasing comprehension of its centrality to women’s lives.

A majority of the members of the US Supreme Court, including the Chief Justice, have just placed before the American people their disdain for the rights possessed by women. It's also the thin edge of a very dangerous wedge.