6/29/2000

Today’s my sister’s birthday. Happy day, Adrienne!

He’s cute, he’s black, he’s on the web. Kittie Art for the masses.

No prescription for the Pill? I think that’s a good thing.

For the very best in Barbie satire, there’s The Decline of Civilization Barbie Page.

Back in April, CNN’s law site ran a story titled What the “Partial-Birth” Abortion Case is Really About. It talks about the distiction between a “facial challenge” and an “as applied challenge”. Basically, a facial challenge tries to show that a law is invalid under all possible applications — for example, a law that mandates each public school day begin with a sectarian prayer. in 1987’s United States v. Salerno, the court ruled that a facial challenge can succeed only if a law cannot operate constitutionally under any set of circumstances. If a law has a single constitutional application, it will survive the challenge. An as applied challenge works in the other direction. Such a chalenge agrees that the law has a constitutional application, but it can’t be applied to him or her. For example, a law that mandates each public school day begin with the pledge of allegiance. The right to speak includes the right not to speak, so a student can’t be forced to recite the pledge. The law would stand, with the provision that people could opt out.

The CNN article, using the example above, says that the court has refrained from using the Salerno ruling in abortion cases. More important than whether the Nebraska law stood or fell was whether the court quoted Salerno and used it in its decision. It turns out that it was not mentioned once, and only Thomas used the concept of facial challenges, and then only at the end of his opinion.

Justice Thomas sure likes his footnotes. I think he’s got more footnote than body in his dissenting opinion. And he’s not one to mince words, either. He’s by far the most graphic. Take care when reading.

I have just about finished reading the Supreme Court opinions on the Nebraska “partial-birth” abortion case released yesterday. (It’s a pdf document. Requires Adobe Acrobat reader.) To recap: the court struck down a Nebraska ban on the procedure with a 5-4 vote. Pro-choice people are calling it a victory but pro-life people are quick to point out that the court left plenty of room to re-draft the ban and have it stand. If you can, read the opinions for yourself. The news agencies won’t give you the details you need to form an informed opinion of your own. My thoughts are all a-jumble on this case, but I’m glad the court went the way it did. Here’s what’s led me to this decision:

• Even though I grew up thinking otherwise, I believe that a woman has the right to end her pregnancy, and in a way she and her doctor see best.
• Nebraska drafted a law that would outlaw one (admittedly chilling) method of abortion, strictly on moral grounds. The Supreme Court has given states that right, so long as undue hardships are not placed on the woman. Leading medical organizations (including the AMA) have opined that this procedure is medically unnecessary, since alternatives exist with similar risks to the woman. As written, however, the law could be interpreted by an over-zealous prosecutor to ban some of those more common alternatives.
• The Nebraska doctor who performs the procedure, Dr. Carhart, sounds (based entirely on quotes in the court’s papers) more like the Simpson’s Dr. Nick Riviera than someone I would trust with my body. His sole method of performing abortions in pregnancies over 12 weeks is this “partial-birth” method, regardless of what alternatives exist. However, he is one of only three doctors in the entire state that perform abortions of any kind. I don’t know why this is, but it undoubtably severely limits a Nebraska woman’s options.
• In this particular case, upholding the ban would have imposed undue hardships on women who were seeking abortions in their second trimester by severely limiting access to an abortion provider. Providers would choose not to do business in Nebraska (even more so) for fear of the litigation by prosecuters applying the law to procedures beyond the original intent.

Justice O’Conner wrote that she would have voted the other way had the legislation provided for a doctor to determine the procedure was medically the best option to terminate a non-viable fetus. Of course, that doorway would make the entire ban moot, as Dr. Carhart could decide that for any patient he sees.

It’s a sticky wicket for the states. They have the right to ban a procedure they find morally repugnant, but they have to do that in a way that doesn’t infringe on a woman’s right to end her pregnancy. For me, it’s a clear call to find and use better, earlier, ways to abort. Like RU-232, or lasers. Perhaps better access to these easier methods early on would leave few, if any, women 19 weeks along still looking for a way out.