The day after South Dakota voters rejected an abortion ban (and, Arizona voters did the same respecting banning same sex marriage -- given Wisconsin did the opposite, this is good news), the Supremes held orals for the two cases involving the federal ban on "partial birth" abortions. Yes, time goes on. Battles are still to be fought. And, Justice Kennedy retains his importance as the swing vote, especially since he dissented the last time around ... when the Supremes struck down a comparable (state) law 5-4. But, as with Casey, his vote is the deciding factor, and a matter of nation-wide significance is at issue. Thus, he is putting out somewhat different noises. [The audio can be found on the C-SPAN website.]
Let's be upfront about this thing. The law was passed as a wedge issue, many Democrats (including Hillary Clinton's predecessor) finding the procedure at hand so heinous, so close to "infanticide," that they could not vote against a ban. It involves partially removing the fetus from the uterus, puncturing the head, and then doing more distasteful to the fetus so that "it" is removed without harming the woman. Since I'm willing to discuss what we are doing here, fairness dictates we underline that this is done for a reason. The alternative is believed by various medical experts to be dangerous to women in various cases, including because the bones of the fetus could puncture the uterus etc.
IOW, it is necessary to protect the woman's health, the abortion itself still legal. Ironically, one benefit is that there is less of a chance of injury that would result in inability of the woman from having another child. This starts to suggest what exactly is at issue here -- one alternative among many bad ones. It underlines the irrationality of the law, even viewing it from some sort of humanity standpoint, unless you want to use it to further pro-life laws overall. But, there is a good amount of dishonesty and legitimate confusion going on here. We have to cut through a lot of emotional rhetoric to get there, but so be it. This whole subject is a dirty, if sadly necessary, business.
This is shown by speaking of "late term" abortions as if (1) the law only kicks in late term (it does not -- various pre-viable abortions are involved; second trimester is "late" now?) and (2) the ban is a late term abortion ban (it is not -- constitutionally women have a right to have late term abortions for purposes of maternal health). It is shown by focusing on the distasteful, yes reasonable minds can say disgusting, nature of the procedure. But, again, the abortions are still allowed -- especially respecting actual "late" abortions, women do not have these for trivial reasons. The relatively small numbers here arise from real health problems and (to be honest) some fetal deformities such as fetuses with only a brain stem. And, there is no easy way to do it.
If we allow these abortions, most of these fetuses will die no matter what. Again, if honest, the critics would admit this. But, it would be hard -- just as it is hard for legislators (including as people) to defend the procedure, since it would require them to discuss material fill with land mines, and emotionally laden stuff at that. Do pro-choice legislatures really want to go into detail about how those alternatives involve things like injecting saline into the uterus to kill the fetus? Are we to assume that all is well -- the suggestion here -- if the fetus is killed (use your favorite verb) inside the uterus? Or, and a few of the justices noted, if the fetus is born, many simply are not viable enough to survive anyway. IOW, how exactly is this particular procedure somehow "infanticide" -- clearly the abortion itself is the problem.
So, Congress cheated. It claimed there were no "facts" that show this procedure is medically necessary. Now, some don't want the courts to be "ex officio medical boards," but giving the job to Congress (surely this one) does not seem much better. Sen. (Dr.) Frist, for instance, did not do a good job when discussing AIDS and Terri Schiavo. We should leave this to medical professionals, in particular, a woman and her doctor. Congress also said this law was not vague, one problem with the state provision struck down. It is somewhat less vague, still retaining constitutional due process problems. And, the law applies when abortion providers are in the flow of interstate commerce, a real stretch though such micromanaging is sadly not atypical. The acceptance by some small government types is a bit questionable.
Predictions? Well, some of the analysis -- fears/hopes aside -- suggests a minimalist path. This appears to be favored by the Roberts Court. Justice O'Connor's final opinion involved abortion, furthering a theme that the courts should not strike down abortion laws unnecessarily, but underlining the importance of maternal health. That law involved a parental notification law, which is if anything less likely to require such a "health" exception. The Court unanimously underlined the constitutionally mandatory nature of such provisions. This law has none.
I would not be surprised, or too upset, if one is in effect court mandated. This would take Congress off the hook -- Republicans get their wedge, plus the additional joy of bashing activist courts. So, it is far from an ideal solution. All the same, ultimately, maternal health matters more. Expect some adjective to be used before "health" in the opinion so that Justice Kennedy can assure his conservative friends that the exception will not eat the rule, so that the opinion of one lone doctor will not decide the day. Someone can reasonably say that overall singling out this procedure -- even without that health issue being used -- is irrational. It is a fraudulent singling out for political reasons. But, we do not live in an ideal world. Some middle path is acceptable.
We shall likely see some time next spring. Be interesting what the newbies say and even if Thomas has something to say about the nationalization of an issue his jurisprudence (see medical marijuana) would seem to believe was the domain of the states. Maybe, he will take the "it wasn't directly raised" dodge. [He will take part in the decision, but illness lead to his absence; Alito said nothing in his stead.]