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Many in the pro-choice camp are decked in sackcloth and ash this week, mourning the Supreme Court’s recent decision in Gonzales v. Carhart, which upheld the Partial-Birth Abortion (PBA) Ban Act of 2003.
The New York Times claims that the decision “severely eroded the constitutional respect and protection accorded to women.” Likewise, Ellen R. Malcolm of EMILY’s List laments that the justices have “so whittled away at the basic reproductive rights of women that Roe [v. Wade] is hanging by a thread.”
But a fair examination of the Court’s stance reveals it to be a modest one, which overturns no precedents, poses no threat to Roe, and will have minimal effects on abortion practices in the United States.
The PBA Ban Act prohibits one very specific and very rare type of abortion procedure: Intact Dilation and Extraction (IDX). In IDX, a physician delivers all of a second-trimester fetus’s body except the head, punctures the base of the skull, and then suctions the skull contents before removing the head from the mother’s body.
In accordance with the precedent from the Roe-affirming Planned Parenthood v. Casey, the Court took up the question of whether the ban of IDX placed an “undue burden” on a woman’s right to abortion. The Court decided that the ban did not unduly burden women because IDX is such a rare procedure (according to the Guttmacher Institute, only 0.17 percent of abortions in 2000 were IDX) and because the ban clearly did not restrict the much more widely-used (and closely substitutable) second-trimester abortion procedure, Dilation and Evacuation (D&E), in which a physician tears a fetus apart as he removes it from the womb piece by piece.
Thus, the law in question does little to prevent abortion. Its main ramification is that a few more fetuses will be minced rather than having their brains vacuumed out.
So why are abortionists so down in the dumps? Their main complaint is that the law does not contain a general exception for the health of the mother. Several experts have testified, though, that IDX never provides health advantages over D&E.
And though there is scientific disagreement on this point, the Court stands firmly on precedent in allowing the law to stand; as 1974’s Marshall v. U.S. explained, “in areas fraught with medical and scientific uncertainties, legislative options must be especially broad.”
On the whole, the claim that the Court is moving toward a reversal of the principles set forth in Roe and Casey is largely unfounded. The only justices who call for a reversal of Casey and Roe are Justices Antonin Scalia and Clarence Thomas (both have long made their views on the matter clear).
President Bush’s recent appointees Chief Justice John G. Roberts Jr. ’76 and Justice Samuel A. Alito Jr. did not join in the Thomas concurrence, hinting that they may stand with the liberal-to-moderate justices of the court in supporting the controversial premise of the right to abortion. (However, some commentators have pointed out that Roberts and Alito may have felt that a case dealing specifically with IDX was not the right time to unveil their entire abortion jurisprudence.)
It even seems possible that the Court may actually be further from overturning Roe v. Wade today (with only two explicit votes to oveturn) than it was five years ago (when there were three votes to overturn including Chief Justice William H. Rehnquist).
Though abortion activists are portraying Gonzales v. Carhart as a tragedy for reproductive rights, their alarmism may be a fundraising gimmick rather than a symbol of genuine concern for the Court’s decision. The PBA Ban Act won’t even dent abortion numbers, and Roe appears more like truly settled precedent than ever before. So the pro-choice crowd can dry their tears; abortion in America is alive and kicking.
Nikhil G. Mathews ’08, a Crimson editorial editor, is a government concentrator in Mather House.
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