Regarding the Supreme Court's decision day before yesterday in Gonzales v. Carhart upholding the federal Partial Birth Abortion Ban Act, I think many people, myself included, who favor abortion rights and agree with the underlying premise of Roe v. Wade and Casey of a woman's right to choose, are sympathetic with the desire to avoid especially grisly forms of abortion where possible. And it seems that so-called partial birth abortions, where the fetus is partially extracted and then its skull is collapsed, may fall within this category. There is some basis in the arguments suggesting such a technique approaches infanticide.
That said, the Court's upholding of the Act despite its lack of a health exception for the mother is inexcusable. First, this ignores the Court's own precedent requiring a health exception for any such ban on an abortion procedure. In the current Act, Congress passed the law without a health exception, stating the procedure was never necessary for a woman's health; and Justice Kennedy, writing for the Court, said this was acceptable because there was "medical uncertainty" over whether the procedure was ever necessary for the sake of a woman's health. He said that pregnant women or their doctors could claim an individual need for a health exception by going to court to challenge the law "as applied" to them.
Justice Ruth Ginsburg, in dissent, rightly responded that this approach was unrealistic and "gravely mistaken..., jeopardiz[ing] women's health and plac[ing] doctors in an untenable position." Absolutely right - by placing medical decisionmaking in these circumstances in the hands of, first, Congress, and then the courts, rather than in the hands of medical professionals, the Court exceeds its proper bounds.
We may agree that certain forms of abortion may be strictly limited (though the right of abortion itself may never be banned), but there always must be an exception for the health of the mother - a point the Court most regrettably failed to honor in this case.
