A Stitch in Haste

I spent much of the past 24 hours reading through the various editorials and commentaries regarding Gonzales v. Carhart ("Carhart II"), No. 05-380 (April 18, 2007). Most repeat the same (old) points on either side of the specific E&X or general abortion debate (i.e., not much new or useful).

One exception -- two really -- from pro-choice activist Lynn M. Paltrow in The American Prospect:

Perhaps in the only good news that can be culled from the opinion, it constitutes the death knell of one of the anti-choice movement's favorite political ruses. For years the anti-abortion movement has argued that Roe v. Wade was wrongly decided, in part, because it federalized abortion and took power away from individual states to decide how to address the abortion issue. In this way, anti-choice activists implicitly reassured the public that even if Roe were overturned, abortion would undoubtedly remain legal at least in states like California, New York, and Washington.

But in the wake of yesterday's ruling in Gonzales v. Carhart, there is now little to stand in the way of a federal law banning abortions everywhere if Roe is overturned. In other words, abortion is not really a question of states' rights, but rather of controlling all pregnant women regardless of the state in which they live.

This was exactly my point in my preview of Carhart II back in February 2006 -- what I call the "World Without Roe" Lie. Overturning Roe v. Wade would not "send abortion back to the states." It would send it back to Congress. And although the current Democratic Congress might never pass a "Federal Right to Life Act," the last Congress certainly would have -- and who can guarantee that future Congresses wouldn't?

(And even if abortion were "left to the states," the recent experiment in unbridled majoritarianism -- the bigoted same-sex-marriage bans -- should be evidence enough that some things should not be left to the states -- should not be left to politicians at any level. A right either exists or it doesn't, and should never be put to a legislative -- or popular -- vote.)

Second:

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).

This I had not contemplated. Can Carhart II indeed be interpreted to mean that methods of delivery, as well as methods of abortion, can be regulated in the context of elevating the interests of the unborn child over those of the mother?

And of course, what about issues like drinking or smoking while pregnant? Can such behaviors that are generally deemed "not in the best interests of the fetus" be criminally punished under Carhart II?

That simply cannot be right.

As I argued yesterday, D&X -- "partial-birth abortion" -- pushes the envelope of abortion procedures, intuitively if not scientifically. It has been described as being as close to infanticide as is medically possible. To the extent that Carhart II is self-limiting to facial challenges on the prohibition of that procedure, it is arguably forgivable. But to the extent that it opens doors for further abrogation of personal reproductive autonomy, it is most certainly unforgivable.