Wednesday, April 18, 2007

"Gambling with Abortion" -- a seminal article reconsidered

Today's Supreme Court ruling upheld the constitutionality of the Partial-Birth Abortion Ban Act, passed by Congress in 2003 and signed into law by President Bush. At the time, 218 Republicans and 63 Democrats voted for the ban in the House, while a filibuster-proof combination of 47 Republicans and 17 Democrats voted for the ban in the Senate.

While there will be a lot of speculation on where this takes us in the future with regard to abortion law in this country, and while the hottest topic is going to be how this affects the 2008 elections, it is worth reviewing what is perhaps one of the most important articles ever published on partial-birth abortion.

Cynthia Gorney's article, "Gambling with Abortion," published in November 2004 in Harper's Magazine, was a finalist for the National Magazine Award. In it, she chronicled the entire story of how the issue of partial-birth abortions came to be raised in the first place, how it galvanized broad support beyond the core of pro-life supporters, how it came to be crafted into law, and how the litigation proceeded following it.

Gorney's story -- which deserves to be read in its entirety -- ends after the first round of appeals in federal court overturned the law, based on the guidelines of the 1992 Planned Parenthood v. Casey decision.

Gorney has an interesting perspective, since while she is a supporter of legalized abortion, she has spent her career as a journalist doing what good journalists do -- getting the story straight, rather than starting from a position of almost helpless advocacy. In the process, she has spent enough time with pro-life activists -- actually talking with them and listening to them -- to treat them with obvious respect for the seriousness, and indeed reasonableness, of their positions.

Here's a brief excerpt from the article that gives a flavor of the world into which Gorney takes the reader. The scene is the San Francisco courtroom where the first of several federal court appeals began. Eve Gartner, a Planned Parenthood lawyer, is questioning Maureen Paul, author of a medical textbook on abortion:

“And you had said that sometimes, when you apply traction to the fetus, it comes out intact up to a point where the calvarium lodges,” Gartner said. “Is that correct?”

“Calvarium” is Latin for “skull.” “Yes,” Paul said.

“In that circumstance, what do you do to complete the procedure?” Gartner asked.

“There are two things you can do,” Paul said. “You can disarticulate at the neck.” She made a tiny up-and-down gesture with one hand. “Or what I prefer to do is to just reach in with my forceps, and collapse the skull, and bring the fetus out intact.”

“So when you—” Gartner paused to rephrase. “In the first scenario, where you disarticulate, would you consider that to be an intact D&E?”

“No,” Paul said.

At the break, everybody got up and went into the hall. Among the murmuring groups outside the courtroom door, a big-shouldered man in a dark jacket could be heard saying quietly to the man beside him, both their faces expressionless: “Disarticulate.”

In the evening one of the reporters covering the trial telephoned me at home; someone had suggested he talk to me, he said, because I had written a book about the abortion conflict. He had some questions about wording. He said he had not heard second-trimester abortion described in detail before. He sounded pretty upset. “I never,” he said, and stopped.

Never what, I asked.

“I never really thought about this before as anything beyond the right to choose,” he said.

"You're why they wrote this bill,” I said.

There is much more of this, since the nature of the appeals process for this law required abortion-rights activists to make a detailed case for why this procedure (or procedural variant, as they prefer to describe it) is sometimes the medically necessary option for the provider performing the abortion.

Gorney tells the story of how some simple and accurate (but, importantly, unsensationalized and un-gory) drawings depicting the partial-birth abortion procedure played a key role in the political process by giving unforgettable images that abortion-rights activists would rather not have in people's minds. (Those striking images were reproduced in the original dead-tree copy of Harper's but are only poorly visible in thumbnail form in the on-line version.)

The importance of depicting exactly what happens is critical to forming public opinion, as any good anti-war activist knows. Or to use another example, it is difficult to watch the highly disturbing scene in "The Good Shepherd" where the CIA is using water torture on a suspected Russian spy -- and then casually support "vigorous interrogation techniques."

For two decades the people who frame legal-abortion campaigns in this country had been working assiduously to keep the door to that procedure room shut, redirecting the national attention to the action beforehand and afterward: the choice to seek an abortion, the decision to have an abortion, the values inherent in a society that gives women the liberty to make this momentous decision without interference from the state.

They had worried for years that if the general public were forced into a mangled-fetus-versus-women's-autonomy tradeoff, the mangled fetus would win.

And indeed, their worst nightmare was being realized before their eyes, as bipartisan votes on no fewer than three occasions passed Congress -- the first two vetoed by President Clinton. The problem was compounded, as Gorney wrote, when the National Abortion Federation "made one misstep after another as they tried to fashion arguments that might now serve as an adequate counterweight to 'the child's brains are sucked out...'"

That must, indeed, have been a challenge.

There was the problem of the claim that the procedure was rare, when it wasn't. The problem of the claim that it was only used in cases of severe fetal deformity, when it wasn't. The problem of the claim that the fetus was already dead by the time the sequence of scissors insertion into the base of the skull and application of the suction to the brain -- when testimony by providers demonstrated that this wasn't true.

These problems were epitomized by Ron Fitzsimmons's famous retraction of things of this nature that he had earlier said to a reporter in an interview:

“Lied through my teeth” were Fitzsimmons's exact words, and although Fitzsimmons says he's still sorry about the credibility damage done to his abortion-rights colleagues in Washington, the truth was that none of them, himself included, had been eager to sit down with reporters or unfriendly congressmen and explain in plain English what D&X is: one terrible-to-look-at procedure among an assortment of terrible-to-look-at procedures used for second- and third-trimester abortion in the United States, which is relatively uncommon, but only relatively—there are 1.3 million abortions performed annually in this country, 12 percent after twelve weeks—and is protected by repeated rulings of the Supreme Court.

The current upholding of the ban on partial-birth abortions is, of course, only a start. Pro-life and abortion-rights advocates alike know this. The real debate is the one with each other as Americans, and the biggest tragedy of Roe v. Wade was that it, like so many over-reaching judicial decisions, snapped closed the cover of that particular book before the opening chapters had been written.

For all of its messiness, the democratic process tends eventually to arrive at compromises that a majority of citizens can live with. Gorney details the differences between the situation in America and that in Western Europe. These countries, which have fairly unlimited access in the first 12 weeks, but increasingly stringent restrictions as gestation progresses, are hardly dominated either by evangelical fundamentalism or by Catholic hard-liners, so they give insight into how this process would probably have worked out in the U.S. in most states absent Roe v. Wade.

Roe v. Wade gave abortion-rights advocates more than they ever dreamed of -- essentially abortion on demand until the moment of birth, limited only by the supply of physicians willing to perform the later-term abortions. They now find themselves placing all of their efforts into defending a Supreme Court decision that is increasingly difficult to defend -- whether as a reflection of medical reality, of moral prudence, of political wisdom, or of legal reasoning. And the "all" of Roe v. Wade was, in retrospect, perhaps critical in developing a large body of pro-life U.S. citizens with a "nothing" position.

It is entirely possible that as a result of this battle, the abortion laws we will eventually end up with in America (and it is inevitable that eventually the democratic process is going to have the final say in a matter that so manifestly is not addressed in the Constitution) could be more stringent than those that would have developed had matters stayed out of the courts.

Ultimately, every tactic on this battlefield of ideas and emotions is fraught with potential unintended consequences. Hence, the title of Gorney's article. It is ultimately Gorney's open mind that allows her to hone in on the gambles that the pro-life activists were taking in pursuing this legislation and the sequence of legislation, litigation, and public persuasion that were ahead. We will finish by quoting a final section from Gorney lengthy article (which, again, should be read in its entirety) in which she is addressing this very question with Douglas Johnson of the National Right to Life Committee:

What happens, I asked Johnson, if you lose? It wasn't the courts I was talking about, exactly, but rather the broad limits of public acceptance. Thirty-one years ago, only the most politically pragmatic right-to-life leaders believed Americans could grow accustomed to the idea that abortion was to be available as an elective medical procedure all over the country; the movement's rank-and-filers were sure, in the first months after Roe v. Wade, that they had only to explain clearly enough what had happened, and then a constitutional amendment or a reversal would soon put everything back the way it had been.

What if they should turn out to be wrong about this, too? What if, in the end, Johnson and his colleagues discover that people have looked at all there is to see, inside a working abortion clinic, and concluded that there is no procedure too distressing to be legal?

I didn't hear anything for a minute, and I thought the line had gone dead. Then Johnson said, “Somebody famous, I can't remember who it was now, said, ‘Man, the brute, can get used to anything.’ There is that.

But I think most people of ordinary sensibilities, when they come face to face with this sort of brutality toward a member of the human family—they do find it shocking. If Roe v. Wade is overturned, then we're in the world where people we elect get to decide these things, and that would be a big step in the right direction.

In the end, if we can't persuade people that unborn members of the human family deserve protection, then they're not going to be protected.”

And that, regardless of legal tactics and political maneuvering, is where the matter will always come to rest.

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