Sunday, April 29, 2007

"it seems unexceptionable to conclude..."

so, you've heard about the gonzales v. carhart ruling. you probably know it better as the court upholding the so-called "partial-birth abortion" ban (the right wing began its checkmate when it got that wholly imaginary term to stick with the mainstream media, but that's another post for another day). i highly recommend dahlia lithwick's article from slate.com about the ruling, as she does a great job of covering the waterfront of offenses to be found within its pages. it is tragic and infuriating on so many levels, and i don't need to detail them all here. (honestly, maybe i should, but it's too exhausting on too many levels.)

there are, however, three main aspects of the ruling that i think deserve emphasis. many others in the women's rights field and across the blogosphere have made note of them already, but i do it again here because on the off chance that you haven't considered them, i think that you should. because of all of it, all the absurdity and misogyny inherent in this ruling, these three things frighten me the most.

1) The Condescension

Lithwick's article focuses heavily on this aspect of the ruling - Kennedy's amazingly condescending language towards both women and the medical community. if you're like me (that is to say, basically a person without a law degree), you imagine supreme court rulings as full of legalese and dense, difficult to parse language. as decisions handed down by the highest court of the country, you imagine them to be complex and logically intricate documents. in many ways, gonzales is such a document, but in other ways, it is shockingly not. the assertion from the ruling that has gotten a lot of airtime is the following statement: "Respect for human life finds an ultimate expression in the bond of love the mother has for her child." these kind of platitudes are a foundation upon which we're suddenly basing constitutional law?? i don't doubt that many people would find that statement to be true - i don't, but again, another story - but regardless, for the life of me i can't figure out how such a sweeping assumption should be the basis for a federal ban on anything.

it gets worse, too. the decision goes on to assert, "whether to have an abortion requires a difficult and painful moral decision..." (of course, 100% of the time absolutely always it does), and then posits that the best way to prevent already regretful mothers from learning of the way in which their fetus was aborted is not to, you know, explain it to them beforehand and allow them to reconsider, but to ban the procedure all together. because obviously, these distraught and morally compromised women can't make that kind of decision for themselves.

and it's not just women for whom the court has decided the legislature can make unilateral decisions - it's the medical community as well! what can't these senators control, really? from the decision:

The Act's stated purposes are protecting innocent human life from a brutal and inhumane procedure and protecting the medical community's ethics and reputation. The government undoubtedly 'has an interest in protecting the integrity and ethics of the medical profession.'

in other words, women and doctors, fret not: we will protect you from yourselves. the level of patronizing behavior and rationale here is breathtaking, and guess what? it's now constitutional doctrine.

2) The Blatant Dismissal of Fact

now, we know that the bush administration has been no huge fan of "the fact" in its seven-year tenure. we know that this anti-intellectualism has seeped into many a corner of the government and indeed, society at large. but i guess i hadn't realized quite how bad it was, or just how disastrous this kind of disregard for the former basis of all legislation and law could be. because i couldn't conceive of statements like this being able to find their way into supreme court rulings:

While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.

i had to re-read that sentence after i read it the first time, because i truly couldn't believe it. "while we find no reliable data"? "it seems unexceptionable to conclude"?? ok, you seriously just based a federal ban on a medical procedure on the idea that "well, we can't prove it, but we have to assume that some women wish they hadn't done this." this - this ability to legislate and rule based on nothing more than the perceived "truthiness" of the matter - this is what bush hath wrought. i laugh when colbert ridicules it; i nearly weep when the supreme court codifies it.

3) The Ruling Between the Lines

this, of all of it, is the most horrifying, the thing that chills me down to my bones. this ruling is not about "partial-birth abortion." how do we know this? because, on a logical level, this decision is totally ineffective in achieving its stated aims. the language of the ruling reaffirms that "the state maintains its own regulatory interest in protecting the life of the fetus that may become a child." ok. but how, exactly, does this decision protect the life of the fetus? it doesn't. in sum, it merely tells doctors that they can't perform an abortion this way, they have to do it that way. the authors of the legislation tap-danced around this by saying that intact D&E (the real medical term for the procedure) is such a "brutal and inhumane" method of abortion that it essentially helps foster a disregard for human life. and that argument, as explicitly accepted by the supreme court in the ruling, is the golden ticket for anti-abortion activists. because who is now to say that regular old D&E (as opposed to "intact D&E", which is the now-banned procedure) isn't brutal and inhumane? or vacuum aspiration in the sixth week of pregnancy? on this level, the true intent of the legislation becomes clear, which is to open the door to further and tighter restrictions, and ultimately a federal ban on all abortion.

you heard about anti-abortion activists jubilation over the gonzales ruling. this is why. the decision is literally an invitation to start legislating on all kinds of abortion access restriction, because they can now be upheld via two things: weakened legal scrutiny standards (another long story, but suffice to say this ruling lowered the bar in a number of ways on how rigorously a court needs to protect the health of a woman in these considerations) and a nebulous desire to ban procedures that "coarsen society to the humanity...of all innocent human life." and it's coming. north dakota voters thankfully shot down a state ban that could have been used as the basis to overturn Roe, but that only bought us time. now, with gonzales on the books, another state will soon pass an all-out ban. it will be challenged. and it will start winding its way through the courts, on its way to the supreme court's doorstep, where it has an exceedingly strong chance of being upheld.

now, it's just a waiting game.

1 comment:

Dee said...

Isn't this "culture of life" stuff kinda contradictory in that, for the most part, those who would prohibit abortion see absolutely nothing wrong with invading a country, raping, maiming and killing innocent civilians not to mention a few thousand of our own men and women?

Where are these "culture of life" people while our young men and women, many of them fathers and mothers, are being blasted into small bits while in foreign lands?

The "culture of life" president doesn't even include those killed and dismembered by car bombs in the death statistics.

That's how important the deaths of our young men and women are to these "culture of life" folks. Their deaths are not even counted nor recognized.

Yet there is so much weeping and wailing and hand-wringing for the poor, unwanted blastocysts!

And, oh by the way, bombing of abortion clinics and killing abortion doctors is just fine, thank you very much.

"Culture of life" my arse! Disgusting!