We’ve got to keep our patients safe, and our doctors out of jail.” The speaker is a physician who performs abortions at a large clinic on the West Coast. Her remarks come at a professional meeting attended by many abortion providers, just days after the Supreme Court announced its decision on Gonzales v. Carhart (“Carhart II”), which upheld a ban passed by Congress on so-called “partial birth abortion,” or the procedure doctors call “intact D&E” (also referred to sometimes as “intact dilation and evacuation,” or “D&X,” for “extraction”).
Normally, physicians at professional conferences don’t strategize how to keep out of jail. (The ban provides for a two-year jail term and a $250,000 fine for those convicted of performing this procedure.) Normally, moreover, one does not expect to see Congress or the Supreme Court privilege its own judgments about appropriate medical practice over that of the most relevant professional associations of doctors involved in a particular branch of medicine, in this case abortion care. (Indeed, the only ob/gyn in the Senate, Tom Coburn [R-OK] is an antiabortion zealot who is on record as favoring the death penalty for “abortionists and other people who take life.”) To no avail, the American College of Obstetricians and Gynecologists, Planned Parenthood, and the National Abortion Federation, the leading professional association of abortion providers, spoke out forcefully against this ban.
But of course, nothing in American politics or jurisprudence is “normal” when it comes to abortion, especially seven years into the George W. Bush presidency. Carhart II arguably represents the first time in history that the Court has held that physicians can be prohibited from using a specific medical procedure deemed necessary by them to benefit their patients’ health. As Justice Anthony Kennedy put it in the majority’s decision, “The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community . . .”
Kennedy’s statement is particularly ironic in that ever since the Roe v. Wade decision in 1973, most of organized medicine has distanced itself from abortion provision. This reluctance to directly engage in abortion was not, if numerous polls are to be believed, because of moral objections to abortion on the part of most physicians, but rather because of a wish to avoid the controversy that abortion care brings. Thus, the complex medical issues that surround intact D&E cases are known only to a relative handful of doctors in the United States. Of the antiabortion doctors who testified before Congress in favor of the ban, none had ever performed an intact D&E, and some had never performed abortions at all.
For supporters of reproductive justice, this decision gives a frightening view of the...
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