The Obfuscation Report

Today, abortion became one of the key issues for the 2008 election, at the local, state, and national level. The Court's decision to uphold the so-called partial birth abortion ban means that a standard medical procedure, intact dilation and extraction, has been banned by this government. Not because it presents the potential to harm America's women, not because it is inherently dangerous medically, but because a group of men who don't like it have the power to ban it.

What's more, today's decision gives the green light to states to begin chipping away at Roe, imposing more and more stringent restrictions.

As Ginsburg wrote in her dissent:

"Today's decision is alarming," Ginsburg wrote for the minority. "It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists....And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health."

She added: "Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman's health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman's reproductive choices."

That medical considerations were not paramount in the the decision is also made clear by Ginsburg:

One wonders how long a line that saves no fetus will hold in the face of the Court's "moral concerns." . . . The Court's hostility to the right Casey and Roe secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists not by the title of their medical specialties, but by the pejorative label "abortion doctors."

Jack Balkin also notes that:

Justice Kennedy invokes what has become the new rhetoric of abortion opponents-- the notion that women often regret abortions and that they are deceived by doctors into having them. This new (post Casey) line of argument arose in the mid 90s when abortion opponents realized that arguing primarily about the status of the fetus would not convince a majority of the public. Instead pro-life advocates sought to argue that abortion hurts women as well as fetuses. The new anti-abortion rhetoric attempts to demonstrate that few women in their right minds, who really understand what abortion involved, would defy their natural love for their children and consent to an abortion, much less seek to procure one. It tries to perform a rhetorical jujitsu move on the idea of choice, by suggesting-- without any empirical evidence, that women don't really choose abortions, and that to have an abortion is actually a violation of their "true" choices.

Justice Kennedy's adoption of the rhetoric and techniques of the extremes in the GOP is particularly disturbing. This is the point that we have reached in our republic--the highest court of the land is practicing the same divisive politics as the worst of the practitioners in the GOP.

This decision throws basic abortion rights into question, which in turn brings the right to choose to the forefront of 2008, when Democrats again are going to have to make supporting the right to choose a litmus test, and where we're going to have to fight hard in the primaries for truly progressive candidates who will make protecting the right to make our own medical decisions paramount.