I don’t know what it is like to have an abortion. I can’t. But I know that the federal law banning “partial birth abortions” approved by the Supreme Court yesterday will have serious consequences for a great number of women. I also know that had this law been in effect a few years ago it could have had tragic consequences for someone I love very much.

(cont.)

The Supreme Court Court’s Decision

What is a partial birth abortion? Here’s how the Partial-Birth Abortion Ban Act of 2003 (the “Act” for short) which the Supreme Court recently upheld (caution: pdf file) in Gonzales v. Carhart , legally defines that term:

`(1) the term `partial-birth abortion’ means an abortion in which the person performing the abortion–

(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and

(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus …

I have no idea what that means. As Justice Ginsberg noted in her dissent, “partial birth” abortion is not a medical term. Indeed, the American College of Obstetricians and Gynecologists noted in its amicus brief to the Court in Gonzales v. Carhart that it opposed the law because:

… it exposes women to serious, unnecessary health risks and does not include any exception to protect women’s health. In addition, ACOG objects to the Act’s vague and overly broad terms because doctors will be unable to determine whether their actions are prohibited by the Act. As a result, the Act will deter doctors from providing a wide range of procedures used to safely perform induced abortions.

The federal district courts, which heard the cases challenging the Act, issued findings of fact after voluminous testimony by medical experts (more evidence than Congress ever considered prior to passing the Act according to Justice Ginsberg). They determined that Dilation and Extraction procedures (“D&E” for short) one of the procedures which is apparently banned by the Act, and which is the most frequently used abortion technique in second trimester pregnancies (months 4-6) is safer than any alternative procedure, especially for women whose health is at risk. Because the Act made no exception for the health of the woman undergoing that procedure, the district courts ruled it unconstitutional under prior Supreme Court decisions, decisions which have now been overruled by the majority opinion in Gonzales v. Carhart.

This is the crux of the issue. By ignoring the health concerns of women undergoing this procedure, the Supreme Court has taken a giant step backward in how we treat women in this country. Let me quote from Justice Ginsberg’s dissent:

Today’s decision is alarming. … It tolerates, indeed applauds, federal intervention to ban a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). …[F]or the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.

That lack of a health exception might have had very dire consequences for someone I love very much, had the Act been in effect when she had her D&E procedure a few years ago: my sister.

Why this matters to me

I think it is fair to say that men have no idea what women go through when they are pregnant. And that applies whether a woman is very happy she’s pregnant, very upset, or somewhere in between. In my sister’s case, she was extremely happy when she finally became pregnant a few years ago.

My sister was so thrilled because she and her husband had been trying for years to have a child. Due to a childhood sexual assault she had suffered internal injuries that made it very difficult for her to conceive. She also suffered from various medical conditions (Chronic Fatigue, etc.) that also affected her health.

After several miscarriages, she and her husband had resigned themselves to the fact that they were never likely to have any children. In fact, her ob-gyn had told her that her injuries were such that she was never likely to carry a child to full term. Then, out of the blue, in her late 30’s, she became pregnant again. She didn’t tell anyone in our family until she had passed her 3rd month, fearing another miscarriage. When that magical date passed, we all received the phone call announcing her pregnancy. She was very excited when she told me, if a little anxious. Still, there was no denying the joy I heard in her voice.

A month or so passed, until I saw her for the first time since her good news, when all of my siblings and I made the trek to my parents’ home for Thanksgiving. She was positively glowing when we met, even as her husband kept watch over her like some anxious mother hen. I’d never seen her happier. She was every niece and nephew’s favorite aunt, but much as she reveled in that role, what she really wanted was her own child to love and care for. All she talked about was how great a father her husband would make, and what plans they had made for the baby when it arrived.

It was several hours after Thanksgiving dinner that her bleeding started. First it was just a little spotting and some minor cramping and pain, but it soon became much worse. She resisted calling her doctor, and then she resisted going to the hospital, but finally her ob-gyn and all of us convinced her she needed to be seen by a physician. By this time her pain was very severe, and she was in a panic, so afraid of losing her baby.

My father, my mother and her husband drove her to the nearest hospital where she was seen in the emergency room. At first the news seemed good. The doctors there were telling her that perhaps the problem would resolve itself with medication to stop the contractions. Unfortunately, that was a false hope. As her bleeding continued to get worse, the doctors advised her that she should have a D&E procedure. She would have to lose her baby.

Again she resisted, It was only after the doctors told her husband and my parents that she needed the procedure done immediately or she might start severe internal hemorrhaging, with all the risk to her health that entailed, that she finally gave her consent. Later they told her that her baby could not have survived in any event. The fetus was simply not far enough along in her development (the fetus was female) to have survived outside my sister’s womb, even if it could have survived the trauma of such a delivery.

The future consequences of the partial birth abortion ban

My sister was fortunate, in that she survived the procedure without any serious injury, although she kept bleeding for several days afterwards. She was also very fortunate that the Dilation and Evacuation procedure she had was not barred by any state or federal law. Would her doctor have been willing to perform this procedure on her today because of the risk that doing so would violate federal law?

I don’t really know. But I suspect that many doctors, fearful of their own legal and criminal liability, will be increasingly reluctant to perform 2nd trimester D&E procedures, even in cases like my sister’s, where the health of the woman, and her physical well being, could be compromised by failing to do so.

And that is why the Supreme Court’s decision to uphold this immoral law is so distressing to those of us who believe that every person is entitled to make their own decisions regarding their health. We now have officially decreed separate classes of persons under the law: those who have the ability to make their own health care choices (men) and those who do not (women). Equal protection under the law has just been written out of the Constitution. The full consequences of that “choice” by five male justices of the Supreme Court is one that will likely lead to further erosion of other constitutional protections in the years to come.

Because once you start rolling back the constitutional rights of any individual, you make it that much easier to limit other rights in the future. You can bank on it.