Last week, in a 5-4 decision, the U.S. Supreme Court handed down a landmark abortion ruling to uphold a federal law that outlaws the so-called partial birth abortion procedure.
This marks the first time since the court established a woman's right to an abortion in 1973, per Roe v. Wade , that it has ruled the Constitution permits a nationwide ban on a specific abortion method.
The challenged medical procedure is called intact dilation and extraction. It is a remotely employed procedure, generally occurring in the fifth or sixth month of pregnancy, often following a diagnosis of severe fetal abnormality or even stillbirth. During this procedure the doctor partly removes the intact fetus from the uterus before aborting it, which can involve an incision into its skull.
The 2003 Partial-Birth Abortion Ban Act outlawed the procedure. However, three appellate courts found the ban unconstitutional. In fact, just a few years ago, the Supreme Court rejected a similar prohibition on the procedure on a 5-4 vote. That law was very much like this one, with neither providing an exception for when the health, childbearing future, or even the life of the mother was at risk. Seven years ago, the Supreme Court determined that that lack of exception created an "undue burden" on a woman's right to choose. The issue of "undue burden" was not found in this most recent ruling.
This time around, President Bush's two appointees – Chief Justice John Roberts and Justice Samuel Alito – were front and center in the majority opinion that upheld the act.
In her dissenting opinion, Justice Ruth Bader Ginsburg referred to the notable change from the court's previous decisions. Quoting opinions in two previous abortion cases, she wrote: "our obligation is to define the liberty of all, not to mandate our own moral code."
Ginsburg said the latest decision "tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists." The ruling "cannot be understood as anything other than an effort to chip away at a right declared again and again by this court."
With the retirement of Justice Sandra Day O'Connor, Ginsburg is the sole female on the court. Justices David Souter, John Paul Stevens, and Stephen Breyer, a celebrated San Francisco native, joined Ginsburg in dissent.
An expected political aftershock, this decision rocks the issue of reproductive health and choice into the epicenter of the 2008 presidential election. The decision represents a glimmer of "great right hope" for anti-choice ground forces to rally around. For the conservative Christian right, this is an assuredly welcome diversion from the extensive procession of gravely failed domestic and foreign policies of the most beleaguered GOP administration since Nixon.
Perhaps just in time to build needed momentum around a cornerstone wedge issue to draw a clearly distinct line in the sand when an overwhelming majority of Americans – liberals, moderates, and conservatives alike – now oppose President Bush's over-leveraged campaign in Iraq.
At the ready, a roster of mostly southern states have slated legislative packages designed to bypass the question of undue burden and further restrict abortion procedures.
Meanwhile, a fundamental rule of engagement by the conservative right remains in play: aggressively work to reframe what should be a rational debate about a woman's right to comprehensive prenatal and postnatal healthcare choices and privacy by crafting marketable, incendiary semantics, i.e., "partial birth abortion," that aim to reduce the debate into a simplistic, dualistic moralist vs. immoralist (also read as good vs. evil, red vs. blue) pulpit-to-primetime political showdown.
By recasting the issue of a rarely performed medical procedure – 2,200 such procedures out of nearly 1 million abortions are reported to have been performed since 2000 – into broad prohibitionist terms, anti-choice forces are waging that pro-choice candidates will acquiesce and retreat from the debate for fear of being tail spun into an implied risky, left of center marginalized viewpoint outside the bounds of their own long championed, established movement for federally protected reproductive choice and privacy.
The tactic is stealth and predictable: the Supreme Court's ruling in one hand, and state legislative movements in the other, corner pro-choice candidates and stalwarts into defending what the moral-anointed have already declared as immoral, and thus indefensible. After all, as far as they are concerned, what truly God-fearing American would defend something called partial-birth abortion? The same people advocating for other civil and humane policies such as marriage equality? Universal healthcare? Gun control? Livable wage?
Anti-choice forces fervently proceed toward their envisioned holy-grail sweepstakes: to overturn and dismantle – no, annihilate Roe v. Wade.
The Supreme Court's recent ruling declares that imminent threat to Roe v. Wade.
Retreat is not an option.
We must demand a rational debate on abortion and protected access to safe reproductive healthcare. Rational debate dictates that a woman and her physician should determine pre/post-natal care options.
There are rational actions we can take right now to protect reproductive choice and Roe v. Wade:
¥ Advocate for the passage of the Freedom of Choice Act, led by Senator Barbara Boxer (D-California). This act would allow for a woman's health and welfare to be factored into the decision to have a late-term abortion under the procedure banned by the court. A similar bill was introduced in the House.
¥ Support the work of organizations such as National Abortion Rights Action League, National Organization for Women, and Planned Parenthood Federation.
¥ Work for the election of a pro-choice candidate for president in 2008. Appointments to the Supreme Court are the enduring, long-reaching legacy – for better or worse – of whom we elect president.
¥ Learn more about the fight for abortion rights in the U.S. since 1973. Go to http://www.pbs.org/wgbh/pages/frontline/clinic/view and watch one of the most compelling and educational documentaries on the importance of Roe v. Wade, The Last Abortion Clinic.
Onward.
Castro resident Andrea D. Shorter is a long-term lesbian activist who currently serves on the San Francisco Commission on the Status of Women.