Political Cortex: Brain Food for the Body Politic

This case is about  second-trimester abortions. That is all that this case is about.  Second-trimester abortions.  Babies are not born in the second  trimester.  Third trimester  abortions are outlawed in most states around the United States, as long as there  is a constitutional protection for women's life and health. So this is not about  babies about to be born.

It is about safe procedures for  women's abortions in the second trimester.   And what this case, at heart, is about - because we've been down this road  before - is about whether the new Roberts-led Supreme Court is going to follow  established law, that "settled law" we heard so much about in the Supreme Court  nomination hearings. It is about whether or not they're going to affirm that  women having abortions in the second trimester have to be able to have the  safest procedures for them.

I said we'd been down this road  before. One of our clients, Dr. LeRoy Carhart, has literally been down this road  before.  He's a doctor in Nebraska; he challenged the Nebraska' so-called  "partial birth abortion ban" and took it to the Supreme Court six years  ago.  And, just six years ago, in Stenberg v. Carhart, the Supreme Court  said, "Doctors must be able to use the safest procedures with their  patients."

In Stenberg v. Carhart, the Supreme Court  made two very important determinations.   They took a look at the Nebraska statute and said; "This is drafted so  broadly that it would cover almost all abortion procedures in the second  trimester.  And therefore it's an  undue burden on women's right to access abortion in the second  trimester."

And secondly, the Court said that  even if you were only talking about intact D&E's - and that's a medical term -  that you would still need to have an exception for women's health, because there  was substantial medical evidence that for some women it is a safer way to  proceed with a second-trimester abortion

So, in essence, what the Supreme  Court said, and Justice O'Connor was very clear in her concurrence, was that you  might be able to draft a  constitutional ban on intact D&E's if you did two things. One, you use  medical terms. The majority said that it would have been a simple matter for  Nebraska to  have used medical language that doctors understand when you're hitting them with  a criminal law. Two: Justice O'Connor said that you have to have a health  exception.  If you write these two  things into the law you could probably draft a constitutional  statute.

So that was the Stenberg case in 2000. Congress gets  their hands on this issue and we're walking down this road again. Congress said  to the Supreme Court "We don't care what you say about the constitutional  requirements for women's health.  We  don't care.  What we're going to do  is pass a statute that is going to be a deliberate attempt to gut the  protections of Roe."

And in fact, the Chief Senate  Sponsor, Senator Santorum, during the process of the hearings, said, and I  quote: "I hope the justices read this record. Because I am talking to you. There  is no reason for a health exception."

Senator  Santorum was saying "I don't care that you just said that women need to have the  safest procedures. We, the Congress, are deciding that we do not want those  guarantees for women's health."  And  so Congress passed the law once again. And, even though the Supreme Court had  said, "It's a simple matter - if you're making criminal laws about medical  procedures, use medical terms," Congress again used the political soundbite,  "Partial-Birth abortion."  

And this is a federal criminal  statute.  For a number of years I was  a prosecutor in the U.S. Attorney's office in the Southern District of New York.  I know full well what it means to bring the power of the federal government into  the lives of people when you're investigating crimes. To think about the power  of the federal government going into doctor's offices and into the intimate  details and decisions of medical care, I have to say, as a former prosecutor, is  frightening.

The federal statute has the same  flaws as the Nebraska law. The Act is so vaguely  worded - because they didn't do the simple thing and use medical terms but used  the political soundbite - that it covers abortions as early as 12 to 15 weeks, and  it covers the majority of second-trimester abortions.  And there's no health exception as  promised by Senator Santorum.  All  the district and circuit courts found it to be unconstitutional. And they did so  because they could easily follow the Supreme Court's established law.  So if the Supreme Court reads its case  law as well as the lower courts did, this should be an easily decided case.  

This law, this political  sound-bite, is part of the agenda to overturn Roe v. Wade.  The Court should be guided not by the  changing political winds, but by a higher principle, the protection of  individual rights. The Supreme Court in this case should send a clear message to  Congress that settled law, and particularly settled law for 30 years going back  to Roe that established a bright line  rule that pregnant women's health may not be subordinated to opposition to  abortion.  That should be  affirmed.

Republished from www.RHRealityCheck.org with permission.