When judges play doctor

By Lydia Howell

It was surreal hearing Supreme Court Justices trying their hand at medical diagnosis during the oral arguments of Gonzalez v. Planned Parenthood. For one thing, Justice John Roberts, echoing other opponents of women's reproductive rights, erased women from the debate.

Chief Justice Roberts was oblivious to how he demonstrated what women and doctors have asserted since before abortion was decriminalized in Roe v. Wade: women and their doctors are far more qualified to make the complicated medical decisions than judges and politicians.

In the process, the court set a dangerous precedent. For the first time, a Supreme Court decision
addressing abortion ignored the question of a woman's health.

At issue was a late-term abortion called dilution and extraction (D and X), an emergency procedure used fewer than 2,000 times a year.

In spite of anti-choice propaganda, women do not have a D and X abortion as an “option.” It is, rather, a tragic necessity in a few cases, ending pregnancies the women involved had hoped would result in motherhood. D and X is done only in circumstances in which continuation of a pregnancy presents very serious health risks, perhaps even death for the woman, or it could end the woman's fertility, or result in a child with severe birth defects.

Roberts and his four anti-choice colleagues are not trained in medicine, so they relied propaganda. In 2003, Randall Terry of Operation Rescue, a powerful anti-abortion organization, said , “The partial birth ban is a political scam but, also a public relations goldmine.”

While an exception was made to save the woman's life, doctors performing the procedure risk two years in prison. Will more judges be playing doctor, pre-approving the procedure, so that doctors will feel secure from prosecution?

Paul Clement, the Department of Justice attorney who argued for the government, alluded to “future challenges based on specific medical conditions.” With the court decision, we have to wonder if some doctors will hesitate or refuse to perform the rare procedure. If they do, the refusals could the result in more women losing their health, their fertility or their lives.

Young women, less than 18 years old, trying to make their own reproductive decisions and bypass parental notification laws have turned to judges with mixed results. Conservative judges now sometimes claim a young woman doesn't have the maturity to end a pregnancy – but that means, perversely, they think she's ready to take on parenthood.

Or perhaps, what anti-choice judges, legislators and activists really are saying is that, for women, “biology is destiny.”

In their view, apparently, giving birth is women's primary purpose for existing. It's overdue for feminists to confront the true agenda of the anti-choice movement. We've been shamed into silence and apologetic defensiveness for too long.

If anti-choice activists really believed “abortion is murder,” then, theirs would be the loudest voices calling for fact-based sex education for young people and for easily available access to contraceptives and for research for new birth control options that are both healthy and convenient. If their “family values” were rooted in reality, theirs would be the loudest voices opposing the continued destruction of
economic supports for poor women and their children.

But, the same folks aiming to ban abortion got millions of dollars shoveled into failed “abstinence only” sex education and pushed for cuts in family planning clinics, welfare and childcare.

They have no problem with health insurance that pays for Viagra and Rogain for men, but won't pay for women's contraceptives.

Conservative federal appeals court judges ruled in the Union Pacific case that such practices are not gender discrimination! In fact, many of the people who want to ban abortion also openly desire to ban contraceptives, too.

Anti-choice activists and judges understand that if women cannot control our reproductive lives, we can't control other major aspects of our lives. They understand that the only way to “put women back into their place” -- as subservient wives and mothers, and only that, is to roll the clock backward to the time before the Pill.

That's the ultimate goal. Abortion is simply the first step.

Justice Ruth Bader Ginsberg and Eve Gartner, representing Planned Parenthood, attempted to make women real to their conservative male colleagues. But, when it comes to reproduction, for some, from the moment of conception only the fetus exists. When anti-choice judges play doctor, women are simply “empty vessels” ---a theological concept incompatible with American law, as well as medicine.

Lydia Howell is a Minneapolis journalist who writes for several newspapers and magazines. She won the 2006 Premack Award for public interest journalism. She also is producer/host of “Catalyst: Politics and Culture” on KFAI Radio.