# Fucking SCOTUS upholds woman-hating "partial-birth" abortion ban. **URL:** \ **Category:** The BBQ Pit\ **Created:** [April 18, 2007, 2:49pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628 "2007-04-18T14:49:38Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 18, 2007, 5:22pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/61 "2007-04-18T17:22:06Z")
[QUOTE=Renob] The Supreme Court isn’t really supposed to be determining if a law is rational or even good. It’s supposed to be determining if the law is Constitutional. As long as it is Constitutional, it can be a particularly crappy law and the Court, if it is doing its job, should not overturn it. [/QUOTE] Indeed, which is why the test is so deferential. But, the argument is that it is unconstitutional to act without a rational basis because of the necessary and proper clause. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [April 18, 2007, 5:24pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/62 "2007-04-18T17:24:01Z")
[QUOTE=Renob] The Supreme Court isn’t really supposed to be determining if a law is rational or even good. It’s supposed to be determining if the law is Constitutional. As long as it is Constitutional, it can be a particularly crappy law and the Court, if it is doing its job, should not overturn it. [/QUOTE] **Renob** - rational basis review is at the very heart of the SCOTUS role in ensuring if a law is constitutional on the basis of Equal Protection. A law can treat people differently, but the government must have a reason for so doing. The basis of classification for the differential treatment determines what level of scrutiny should be applied - race/nationality based differences get strict scrutiny, sex based ones get intermediate review, most others (including sexual orientation) get rational basis review. It means the law is constitutional, despite treating people differently, if the government has a rational basis (very low standard) for treating people differently based on that characteristic. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [April 18, 2007, 5:29pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/63 "2007-04-18T17:29:34Z")
[QUOTE=Richard Parker] Also, the government cannot ban procedures for “no reason” or a “crappy reason.” They have to have a rational basis. [/QUOTE] Do they? Equal protection means that the court needs at least a rational basis for treating different people or different groups of people differently, but do they need a rational basis for treating different procedures differently? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 18, 2007, 5:32pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/64 "2007-04-18T17:32:26Z")
[QUOTE=Renob] Since it had fairly strong bipartisan support when it passed Congress (including Senate Majority Leader Reid and Pres pro tem Byrd), it’s unlikely the Democrats will be pushing any sort of repeal measure. [/QUOTE] [Indeed.](http://www.cnn.com/2003/ALLPOLITICS/10/22/abortion/index.html) > [@](#): > > The Senate vote, 64-34, came just three weeks after House passed the bill by a 281-142 margin. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [April 18, 2007, 5:34pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/65 "2007-04-18T17:34:50Z")
[QUOTE=DiosaBellissima] I’m an idiot _waves_. I was under the understanding that PBA meant that whole thing where they yank a baby halfway out, then let it die in one way or another. I’m probably a victim of propaganda or something or another. So enlighten me, please. Fight my ignorance. What _exactly_ are we talking about here when we say Partial Birth Abortions? [/QUOTE] According to the decision, this is what the law bans: > [@](#): > > In the usual second-trimester procedure, “dilation and evacuation” (D&E), the doctor dilates the cervix and then inserts surgical instruments into the uterus and maneuvers them to grab the fetus and pull it back through the cervix and vagina. The fetus is usually ripped apart as it is removed, and the doctor may take 10 to 15 passes to remove it in its entirety. The procedure that prompted > the federal Act and various state statutes, including Nebraska’s, is a variation of the standard D&E, and is herein referred to as “intact D&E.” The main difference between the two procedures is that in intact D&E a doctor extracts the fetus intact or largely intact with only a few passes, pulling out its entire body instead of ripping it apart. In order to allow the head to pass through the cervix, the doctor typically pierces or crushes the skull. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 18, 2007, 5:41pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/66 "2007-04-18T17:41:35Z")
[QUOTE=Captain Amazing] Do they? Equal protection means that the court needs at least a rational basis for treating different people or different groups of people differently, but do they need a rational basis for treating different procedures differently? [/QUOTE] There is also a rational basis review for actions under the commerce clause, I believe. (See, for example, Souter’s dissent in Lopez.) ---
**Author:** ![Fish](https://avatars.discourse-cdn.com/v4/letter/f/bc8723/32.png) [@Fish](https://boards.straightdope.com/u/Fish)\ **Post date:** [April 18, 2007, 5:45pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/67 "2007-04-18T17:45:46Z")
When the Christian Scientists gain power, you won’t be able to have a blood transfusion unless you first play a round of Russian Roulette. No, that won’t have a chilling effect on the need to have blood transfusions **at all.** ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 18, 2007, 5:48pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/68 "2007-04-18T17:48:59Z")
[QUOTE=FriarTed] I am willing to be convinced that PBA procedures may be necessary to prevent severe harm to the physical health of women. I am not yet convinced. [/QUOTE] From my point of view, the problem is your position that your being convinced should be relevant at all. I’m not convinced that the procedure is necessary, but whether I’m convinced or not should be absolutely irrelevant to a woman and her doctor contemplating using the procedure. It ain’t my business and it ain’t yours either. ---
**Author:** ![WhyNot](https://avatars.discourse-cdn.com/v4/letter/w/c77e96/32.png) [@WhyNot](https://boards.straightdope.com/u/WhyNot)\ **Post date:** [April 18, 2007, 5:55pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/69 "2007-04-18T17:55:08Z")
[QUOTE=Captain Amazing] According to the decision, this is what the law bans: [/QUOTE] And it’s pretty obvious that 10-15 passes takes longer than one or two, and is a safer option should speed be of the essence, as it often is in surgical procedures. And, as \*\*ascenray \*\*says, the only ones who should be deciding this are that woman and her doctor. ---
**Author:** ![Waenara](https://avatars.discourse-cdn.com/v4/letter/w/50afbb/32.png) [@Waenara](https://boards.straightdope.com/u/Waenara)\ **Post date:** [April 18, 2007, 6:10pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/70 "2007-04-18T18:10:00Z")
[QUOTE=Captain Amazing] According to the decision, that’s not banned by the law: > [@](#): > > First, since the doctor must “vaginally delive[r] a living fetus,” §1531(b)(1)(A), the Act does not restrict abortions involving delivery of an expired fetus or those not involving vaginal delivery, e.g., hysterotomy or hysterectomy. [/QUOTE] However, according to the _Ms._ article linked earlier in the thread, one problem is a lack of physicians trained to do a certain procedure. If intact D&E is desired by a woman whose fetus has died in utero, it doesn’t do her any good if technically she’s still legally allowed to have the procedure but has great difficulty in finding a physician who is trained and willing to perform the procedure. From that article: > [@](#): > > At the same time, fewer medical schools are training doctors to do these procedures. After all, why spend time training for a surgery that’s likely to be made illegal? > > At this point, 74 percent of obstetrics and gynecology residency programs do not train all residents in abortion procedures, according to reproductive health researchers at the National Abortion Federation. Those that do usually teach only the more routine dilation and curettage — D&C, the 15-minute uterine scraping used for abortions of fetuses under 13 weeks old. > > Fewer than 7 percent of obstetricians are trained to do D&Es, the procedure used on fetuses from about 13 to 19 weeks. Almost all the doctors doing them are over 50 years old. > > “Finding a doctor who will do a D&E is getting very tough,” says Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers. In this woman’s case: > [@](#): > > We told our doctor we had chosen a dilation and evacuation. > > “I can’t do these myself,” said my doctor. “I trained at a Catholic hospital.” > > My doctor recommended a specialist in a neighboring county, but when I called for an appointment, they said they couldn’t see me for almost a week. > > \*snip > > [Four days later, after increasing bleeding]…\* > > I began calling labor and delivery units at the top five medical centers in my area. I told them I had been 19 weeks along. The baby is dead. I’m bleeding, I said. I’m scheduled for a D&E in a few days. If I come in right now, what could you do for me, I asked. > > Don’t come in, they told me again and again. “Go to your emergency room if you are hemorrhaging to avoid bleeding to death. No one here can do a D&E today, and unless you’re really in active labor you’re safer to wait.” > > _snip_ > > At last I found one university teaching hospital that, at least over the telephone, was willing to take me. > > “We do have one doctor who can do a D&E,” they said. “Come in to our emergency room if you want.” > > But when I arrived at the university’s emergency room, the source of the tension was clear. After examining me and confirming I was bleeding but not hemorrhaging, the attending obstetrician, obviously pregnant herself, defensively explained that only one of their dozens of obstetricians and gynecologists still does D&Es, and he was simply not available. > > Not today. Not tomorrow. Not the next day. > > No, I couldn’t have his name. She walked away from me and called my doctor. > > “You can’t just dump these patients on us,” she shouted into the phone, her high-pitched voice floating through the heavy curtains surrounding my bed. “You should be dealing with this yourself.” ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [April 18, 2007, 6:10pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/71 "2007-04-18T18:10:40Z")
[QUOTE=WhyNot] And it’s pretty obvious that 10-15 passes takes longer than one or two, and is a safer option should speed be of the essence, as it often is in surgical procedures. And, as \*\*ascenray \*\*says, the only ones who should be deciding this are that woman and her doctor. [/QUOTE] Exactly. The ban makes absolutely no sense and protects no one. It makes a procedure unnecessarily more risky for no rational reason. Can anyone who favors this ban please tell me exactly what you think it accomplishes? Is it somehow a victory for fetuses that they be rended limb from limb in utero rather than have their skulls crushed outside the cervix? ---
**Author:** ![RedRosesForMe](https://avatars.discourse-cdn.com/v4/letter/r/91b2a8/32.png) [@RedRosesForMe](https://boards.straightdope.com/u/RedRosesForMe)\ **Post date:** [April 18, 2007, 6:20pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/72 "2007-04-18T18:20:39Z")
[QUOTE=Captain Amazing] > [@Siege](#): > > The woman in the article learned her child had died in utero. The safest way to extract it was by dilation and extraction, one of the procedured I gather is banned by the partial-birth abortion ban. According to the article, less than 7% of obstetricians are trained to do dilation and extractions. As a result, this woman had to go through quite an ordeal to find one. Keep in mind she wasn’t seeking an abortion. Her child was already dead within her. According to the decision, that’s not banned by the law: [/QUOTE] If I read the article correctly, I believe the main problem here was that very few doctors are trained in D&Es because some of them are banned- and most of these doctors that _are_ trained are over 50. New OB/GYNs are frequently not trained in the procedure, which made it extremely difficult for this woman to get one. She had a dead fetus inside her, and was bleeding (but not hemmorhaging) and spent a week afraid that she was going to deliver this fetus herself because no ER would treat her. So though not all D&Es are banned, it is still rather difficult to get one. Just to clarify. ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [April 18, 2007, 6:23pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/73 "2007-04-18T18:23:02Z")
[QUOTE=Diogenes the Cynic] ExCan anyone who favors this ban please tell me exactly what you think it accomplishes? Is it somehow a victory for fetuses that they be rended limb from limb in utero rather than have their skulls crushed outside the cervix? [/QUOTE] Why don’t you ask all those “women-hating” Democrats who supported the bill when it passed Congress? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [April 18, 2007, 6:24pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/74 "2007-04-18T18:24:12Z")
[QUOTE=Richard Parker] What is the federal source of this authority? The commerce clause? [/QUOTE] The Supreme Court has spoken. No other basis is necessary. It’s a living document, you know. You don’t like it? Tough - the Supreme Court cannot be shackled by anything as mundane as the text of the Constitution. The Constitution says whatever the Supreme Court says it says, and you all get jack shit to say about it. Dogs, know your betters! Regards, Shodan ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [April 18, 2007, 6:32pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/75 "2007-04-18T18:32:46Z")
[QUOTE=Renob] Why don’t you ask all those “women-hating” Democrats who supported the bill when it passed Congress? [/QUOTE] How am I supposed to ask them? And what does partisanship have to do with my question? I asked for ANYONE who supported the ban to explain it. I suspect that nobody can. At best it’s an ill conceived cosmetic measure designed to deceive pro-lifers into thinking that their elected officials are doing something to restrict abortions. At worst, it’s pure vindictiveness designed to punish women for having abortions. ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [April 18, 2007, 6:44pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/76 "2007-04-18T18:44:59Z")
[QUOTE=Shodan] The Supreme Court has spoken. No other basis is necessary. [/quote] SCOTUS does not make up the laws, or the constitution, only interprets them. It does not work in a vacuum, but must give a justification for its decisions. > [@](#): > > It’s a living document, you know. Not according to Scalia. > [@](#): > > You don’t like it? Tough - the Supreme Court cannot be shackled by anything as mundane as the text of the Constitution. The Constitution says whatever the Supreme Court says it says, and you all get jack shit to say about it. Dogs, know your betters! ## But the same body has interpreted the same document in opposite ways over time. cf: [Plessy](http://www.tourolaw.edu/patch/Plessy/) (1898) with [Brown](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=347&page=483) (1954). No interpretation is permanent. It is my belief that one reason this case ever came forward is the anti-abortion crowd was revolted by [the way PBA works:](http://en.wikipedia.org/wiki/Partial_birth_abortion) ( don’t read this if you are squeemish) > [@](#): > > …the doctor pulls one or both legs out of the birth canal, causing what is referred to by some people as the ‘partial birth’ of the fetus. The doctor subsequently extracts the rest of the fetus, usually without the aid of forceps, leaving only the head still inside the birth canal. An incision is made at the base of the skull and a suction catheter is inserted into the cut. The brain tissue is removed, which causes the skull to collapse and allows the fetus to pass more easily through the birth canal. The placenta is removed and the uterine wall is vacuum aspirated using a suction curette. If the “awfulness” of a medical procedure is the reason why a legislature should prohibit it, let’s get a whole bunch of bloody pictures of operations and submit them to a committee. Show them in living color and in slow motion, with closeups. Be sure to use a soundtrack of fingernails on blackboard. The procedures that cause anyone to faint or puke should be made illegal. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 18, 2007, 6:49pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/77 "2007-04-18T18:49:22Z")
[QUOTE=Diogenes the Cynic] How am I supposed to ask them? And what does partisanship have to do with my question? I asked for ANYONE who supported the ban to explain it. I suspect that nobody can. At best it’s an ill conceived cosmetic measure designed to deceive pro-lifers into thinking that their elected officials are doing something to restrict abortions. [/quote] I agree. Now, where in the constitution does it say that Congress can’t pass ill-conceived measures? Our jurisprudence on abortion is supported very shakily on the text of the Constitution, and where exactly we end up is going to be highly subjective. The whole “undue burden” idea sets itself up to wide range of interpretations. Of course, if you actually wanted to debate the issue, you’d’ve opened a thread in GD. So I suppose I should just let you bang your head against the wall all you want. You’re pissed at this decision. Fine. Just don’t pretend, once again, that you have the one and only truth on the issue. > [@](#): > > At worst, it’s pure vindictiveness designed to punish women for having abortions. Well, that might be the purpose of a tiny, tiny minority of the bill’s supports. Rather, it’s more likely that most people find the procedure abhorrent. They may be ill-informed on the subject, but it does have a rather large “ick factor”. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 18, 2007, 6:53pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/78 "2007-04-18T18:53:30Z")
[QUOTE=Shodan] The Supreme Court has spoken. No other basis is necessary. It’s a living document, you know. You don’t like it? Tough - the Supreme Court cannot be shackled by anything as mundane as the text of the Constitution. The Constitution says whatever the Supreme Court says it says, and you all get jack shit to say about it. Dogs, know your betters! Regards, Shodan [/QUOTE] Does that mean you’re against using the commerce clause to ban partial birth abortions, **Shodan**? ---
**Author:** ![thirdwarning](https://avatars.discourse-cdn.com/v4/letter/t/ecccb3/32.png) [@thirdwarning](https://boards.straightdope.com/u/thirdwarning)\ **Post date:** [April 18, 2007, 8:14pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/79 "2007-04-18T20:14:11Z")
Something about that article that was linked earlier made me wonder, so I checked it again. It says that most of the doctors who are trained to perform this procedure are over fifty, and only a small percentage of Ob/Gyn programs teach it. But the ban was only signed into law in 2003, and was just upheld by the court. Where are all the doctors who would have been trained in this up to that time. It seems there must have been something else going on, and that the mere possibility of a ban being passed and then upheld can’t be enough to affect standard practice and training that much in a relatively short time. ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [April 18, 2007, 8:25pm UTC](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628/80 "2007-04-18T20:25:09Z")
[QUOTE=Richard Parker] What is the federal source of this authority? The commerce clause? [/QUOTE] Interesting question. My quick read of the opinion and statute did not definitively answer it. My guess is that the Commerce Clause is the source of the authority. Certainly, the ability of Congress to regulate drugs and medical devices flows from the CC, and I accept that logic. Regulating a medical practice, IMO, stretches the CC somewhat further. Unfortunately, I dont have the time right now to follow the cases cited in the opinion which may discuss the issue. (I am aware the the Commerce Clause provided the basis for another Federal law relating to abortion activities, one that the OP almost certainly supports.) [Previous page](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628.md?page=3) [Next page](https://boards.straightdope.com/t/fucking-scotus-upholds-woman-hating-partial-birth-abortion-ban/400628.md?page=5)