SUNDAY FREEMAN
Kingston, NY
Apr. 29, 2007
Editorial
A Cynical Incoherence
The recent ruling of the U.S. Supreme Court banning a specific method of abortion is a cynical incoherence. The appropriate remedy to this judicial mischief is statutory and legislative. Gov. Eliot Spitzer has done right to propose just such a response by New York.
At issue is a rarely used procedure medically known as intact dilation and extraction. In this procedure, the fetus is removed from the uterus and dismembered in the vaginal canal, rather than being dismembered in the uterus. Ugly business either way, no doubt.
The Supreme Court majority decided, with an apparently straight judicial face, that the change of location creates "ethical and moral concerns" sufficient to overturn what had been settled law.
The court's vaginal theology aside, the problem with federal abortion rights as first defined by the landmark Roe v. Wade ruling in 1973 is they have always rested upon the shakiest of foundations.
The abortion rights created by Roe relied upon a relatively new elaboration of the concept of privacy from state interference in Griswold v. Connecticut in 1965. In that case, the court created a legal fiction, finding the constitutional right of a married couple to use contraception within the "penumbras and emanations" of the Bill of Rights.
Penumbras and emanations - tricky concepts, those. Legalistic theology, really. Resorting to higher law than was objectively written in the Constitution was a virtual invitation to the perpetual ferment we have had over the rights ever since. But upon such ground has American society since evolved critical understandings of sexual and reproductive autonomy, as well as a stronger sense of the inviolability of the relationship between patient and physician.
So it is that we are entirely for the idea of a right to privacy that limits government intrusion on the most intimate of human matters, including sexual behavior, contraception and fertility, including abortion. Much of what is right about the American experiment is about limited government. Along that line, we would guess most Americans are not interested in having the government standing inside their bedrooms, rummaging through their drawers for evidence of contraceptives, or standing between them and their physicians.
But it's hard to maintain a dream house of rights built upon intellectual quicksand. As jurisprudence, both the right to privacy and abortion rights are difficult to defend forever as penumbric emanations.
That said, the Supreme Court ruling this month in Carhart v. Gonzales was - and this hardly seemed possible - even more incoherent and indefensible.
Here's why:
First, the Supreme Court majority stooped to embrace an obvious fiction ginned up by Congress as rationale for the legislation. To comply with its previous rulings, the court declared the abortion procedure at issue is never needed to protect the health of the woman. There is ample credible medical testimony to the contrary.
Second, the Supreme Court majority also stooped to embrace the fiction that the choice of abortion entails a broad, quantifiable harm to women so choosing. This is a fable long wielded by abortion rights opponents, but unsupported by serious research.
Third, to conform with its prior rulings, the Supreme Court created its own fiction in arguing that there is something compellingly different between an abortion completed within the uterus and one that is completed within the vaginal canal. It is a distinction without a difference.
Fourth, the majority effectively ignored the court's previous rule that medical uncertainty about what is best for the patient automatically creates a health exception to any effort to ban abortion, including particular procedures.
FINALLY, the majority ruling depended upon the votes of the newest members, Justice
Samuel Alito and Chief Justice John Roberts. As nominees to the Supreme Court, both of these characters made solemn representations before the Senate Judiciary Committee about their undying devotion as conservative jurists to the principle of stare decisis, a fancy way of saying that precedent should be respected. With the contortions of jurisprudence in the majority decision in Carhart, we now know that Alito and Roberts were shoveling knee deep from the middle of the barnyard.
In any event, despair not. New York can and should move to protect by state statute all of the rights of privacy, reproductive choice and medical autonomy to which its citizens have become accustomed over the past 40 years by virtue of federal court action.
The Empire State has within its hands the power to challenge the federal government for control over abortion as a health issue, an area of sovereignty over which the states typically have a strong constitutional claim against federal intrusion.
The state Assembly and state Senate should take up the governor's proposal this session, hold public hearings across the state, and adopt all necessary and prudent safeguards for New Yorkers to continue to enjoy the freedoms and personal autonomy to which they have become accustomed.