Doctor, There's a Lawyer in My Womb
The Supreme Court attempts to understand partial-birth abortion.
The second case of the morning, Gonzales v. Planned Parenthood, comes out of the 9th Circuit, and it proceeds pretty much along the same lines. Breyer seems to continue to refer to the Stenberg case as, alternatively Stenhart or Cathcart. The justices continue to parse complex "marginal" versus "significant" medical-risk analysis. Eve Gartner represents Planned Parenthood and she also underscores the argument that Congress ignored the high court's "hallmarks" for a constitutional partial-birth abortion ban. Again, she is caught up in a swirling debate about vertex deliveries, the extraction of fetal legs, and the possibility of requiring physicians to alter their standard protocols.
A telling moment occurs toward the end of Gartner's presentation when she allows herself to emote, to urge that this is a "very personal moral/religious decision" for a woman, often made "for very tragic reasons" over how she "wants her fetus to undergo demise." She notes that, "Congress has legislated that for a woman." The chief justice responds with the question: "If a woman can take into account the impact on the fetus" and its suffering, "why is that beyond the scope of things the Congress can take into account?"
It's a good question. But the best evidence I can offer for why neither the courts nor the Congress should be able to trump the mother's and doctor's preferences about the safest way to terminate her pregnancy is just this: After 120 minutes of exquisitely detailed medical inquiry, the justices have proven beyond a reasonable doubt that they just are not doctors. They have tried valiantly to understand the medical testimony and to analyze the protocols. They struggle to weigh the risks of lethally injecting a fetus in the uterus. But that's just not why they went to law school.
By the same token, six congressional hearings and dozens of witnesses have proven beyond a reasonable doubt that the United States Congress is not a body of doctors, either. Indeed, their ability to simply ignore inconvenient medical facts suggests that if they were doctors, they'd be rather rotten ones. If the justices are looking for the cleanest, easiest way out of this whole partial-birth abortion business, I would suggest that if institutional humility means anything at all, it means that when you can't understand the medicine, you stay out of the operating room. When you find yourself lacking the skills and experience to define the fine line between the intent and outcomes of similar medical procedures, or to weigh the hazards arising from each, perhaps the most prudent thing to do is to leave it to those who do.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Justice Scalia on Slate's home page by Chip Somodevilla/Getty Images.