Three days ago, the U.S. Supreme Court announced that it would review the constitutionality of the Partial-Birth Abortion Ban Act. The announcement signaled a possible rescue of the law, which had been struck down by appellate courts. Pro-lifers rejoiced. Pro-choicers fumed. The press saw it as a possible turning point in the campaign to overturn Roe v. Wade.
Here's a different way to think about the case. It isn't about whether you're for or against abortion. It's about how confident you are that an unwelcome medical scenario will never happen.
The ban has become so politically central to the abortion debate that it's easy to forget how medically marginal it is. At most, it would affect fewer than one in 250 U.S. abortions. Of these 2,000 to 5,000 unborn babies—if that's what you believe they are—it would save none. It doesn't ban abortions beyond a stage of pregnancy; it just regulates the methods by which they're done.
Despite this empty result—or maybe because of it—many pro-choice politicians are willing to accept the ban. If you can end a pregnancy safely by other means, it seems gratuitously revolting to partially extract the fetus during the procedure. But that's a big if. What pro-choicers demand, and pro-lifers reject, is an exception to allow this method in situations where it's ostensibly necessary to protect the woman's health. According to the National Right to Life Committee, "the vast majority of partial-birth abortions do not involve any acute medical circumstances." So, in theory, the dispute is confined to a fraction of a fraction of all abortions.
Because the justifying scenarios are exceptional, and because the rationales for the procedure are technical, the federal judge who heard testimony in this case issued an opinion short on generalizations and long on details. His opinion runs 474 pages. It spends 57 pages reviewing congressional testimony over a nine-year period and another 278 pages reviewing medical testimony at the trial. It discusses numerous health conditions that, according to doctors who testified, make partial-birth abortion possibly the safest procedure for the woman. It concludes, "The trial evidence establishes that a large and eminent body of medical opinion believes that partial-birth abortions provide women with significant health benefits in certain circumstances." Not all circumstances—just certain ones.
The appeals court opinion affirming this ruling takes similar care. It enumerates scenarios in which testimony and logic indicate that partial-birth abortion might be the safest procedure. It acknowledges contrary testimony but concludes, "If one thing is clear from the record in this case, it is that no consensus exists in the medical community." Quoting a six-year-old Supreme Court opinion, it warns that "the division of medical opinion about the matter at most means uncertainty, a factor that signals the presence of risk, not its absence."
The ban's authors in Congress, like its defenders in the Bush administration, show no such humility. The nine years of congressional testimony that took 57 pages to describe in the trial court's opinion are boiled down in the ban's text to five pages. Every inconvenient nuance, witness statement, or piece of evidence is obliterated. The word "never" appears 10 times. "Congress finds that partial-birth abortion is never medically indicated to preserve the health of the mother," says the law, offering no details. "These findings reflect the very informed judgment of the Congress that a partial-birth abortion is never necessary to preserve the health of a woman." Who needs information when you've got informed judgment? Who needs sometimes when you've got never?
In its brief in defense of the law, the Bush administration adopts the same attitude. It crafts a list of legal precedents designed to cow judges into accepting the ban's "findings" instead of trial evidence. The precedents involve the economics of television stations; the sophistication of high-school administrators in interpreting legislation; the ability of volunteers to staff non-combat military jobs; and limits on attorneys' fees in claims for veterans' benefits. It's a telling list, full of one-size-fits-all policies. Three times, the brief quotes a line that says Congress deserves deference because it's "better equipped to amass and evaluate the vast amounts of data bearing on such an issue." But vast data-crunching isn't what's needed here. What's needed is sensitivity to variable particulars.
The administration cites four cases that purportedly validate deference to Congress "on issues of medical or scientific judgment." Two of the cases pertain to treatment of people who have previously committed crimes, which begs the question of whether partial-birth abortion should be criminalized. In the third case, which was decided during Prohibition, the administration's brief notes that the Supreme Court "deferred to an 'implicit congressional finding' that alcohol had no medicinal uses." The administration conveys no acknowledgment, much less embarrassment, that medical evidence now shows this finding to be wrong. In the fourth case, the court upheld a congressional finding that X-rays were too crude to catch all instances of a disability-related disease. The finding was upheld because it rejected, not imposed, a glib medical generalization.
The argument made by pro-lifers against a health exception is that doctors will interpret it too broadly. Maybe so. But whom do you trust less: Doctors who apply the exception too broadly, or politicians who categorically dismiss it? As the doctors challenging the ban observe, Congress has no "particular expertise" in medicine. Only 11 of its 535 members are doctors, and only one has performed abortions. * If doctors err in using partial-birth abortion when they should rely on a different procedure, the number of additional fetuses killed is zero. But if lawmakers err in ruling it out, every case they screw up is a woman subjected to medical risk.
Unlike Congress, the appeals court that affirmed the necessity of this procedure didn't purport to close the question. It conceded,
This is not to say, however, that because the Supreme Court concluded "substantial medical authority" supported the need for a health exception in 2000, legislatures are forever constitutionally barred from enacting partial-birth abortion bans. Rather, the "substantial medical authority" test allows for the possibility that the evidentiary support underlying the need for a health exception might be reevaluated under appropriate circumstances. Medical technology and knowledge is constantly advancing, and it remains theoretically possible that at some point (either through an advance in knowledge or the development of new techniques, for example), the procedures prohibited by the Act will be rendered obsolete. Should that day ever come, legislatures might then be able to rely on this new evidence to prohibit partial-birth abortions without providing a health exception.
That's the kind of open-minded caution you need to adjudicate complex medical questions. And that, not life or choice, is the crucial question in the partial-birth abortion case. Which party in the dispute has more expertise? Which takes more care? Which shows more humility? By any of those standards, the doctors and judges put the politicians to shame.
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