Handmaids, all

Lynn Paltrow explains the real trouble with this week's Supreme Court ruling. Even Ezra Klein didn't immediately see it:

I didn't have a particularly full understanding of the argument until Ann finally sat me down (well, we were walking, but still) and explained it to me. The Partial Birth Abortion Act is in the rich naming tradition of The Healthy Forests Act, in that the legislation's title suggests a rather different purpose. I'd assumed it banned late-term abortions, an assumption that seemed backed by the arguments over maternal health. I was wrong. It actually bans intact Dilation and Extraction, a procedure conducted as early as the 13th week, depending on the condition of the fetus and the particular circumstances of the mother. So what the legislation actually does is outlaw a type of abortive procedure, not a timeframe or circumstance.

As Paltrow points out, this is actually very important, because it opens a nasty (if you're a woman, liberal, or otherwise sane) legal trapdoor:

Indeed, the ruling effectively reverses more than 30 years of precedent requiring that laws regulating abortion ensure protection not only of the woman's life, but also her health. ... The decision thus has grave implications for all pregnant women, not only those seeking to end pregnancies. If the government can choose to advance fetal interests over the pregnant woman's health in the context of abortion, why can't so-called "fetal rights" prevail in the context of birth?

In fact, this argument is already being used to justify court-ordered Cesarean sections in cases where physicians believe that a c-section will prove more beneficial to the fetus (this despite the fact that c-sections constitute major surgery and pose increased health risks to the pregnant woman and in some cases the fetus as well). True, most courts so far rule that such interventions unconstitutionally strip women of their civil and human rights, including bodily integrity, informed medical decision-making, liberty, and, in one case, life itself. In that case, later reversed by an appellate court, both the woman and her baby died after a forced c-section ordered to protect fetal life.

But at least one federal court has said that sending police to a woman's home, taking her into custody while in active labor and near delivery, strapping her legs together and her body down to transport her against her will to a hospital, and then forcing her, without access to counsel or court review to undergo major surgery constituted no violation of her civil rights at all. The rationale? If the state can limit women's access to abortions after viability, it can subject her to the lesser state intrusion of insisting on one method of delivery over another.

Which is why it's sort of no good being pro-choice unless you're an absolutist about it. With different opponents we could maybe have a reasonable debate. Movement conservatives, on the other hand? Let them keep propagating the notion that foeti are people into our jurisprudence, and they can, will, and just did use it to define away the civil rights of pregnant women.

And they've already started on the pre-pregnant, too. That means you.

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This page contains a single entry by Milligan published on April 19, 2007 9:57 PM.

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