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Media Mistakes Fuel High Court Abortion Ruling

April 19, 2007

[The] partial birth abortion ban is a political scam but a public relations goldmine...The major benefit is the debate that surrounds it.—Randall Terry
Ruth Bader Ginzburg’s Dissent As Linda Greenhouse described it in the New York Times, Justice Ginzburg took the unusual step of reading portions of her dissenting opinion from the bench “at a slow pace that caused every syllable to resonate.” Below are excerpts of that dissent—in which Justices John Paul Stevens, David H. Souter, and Stephen G. Breyer joined—arguing that the majority in Gonzales v. Carhart abandoned precedents set in previous rulings (Casey and Stenberg) that upheld the 1973 Roe v. Wade guarantee of women’s abortion rights. Today's decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health. I dissent from the Court's disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman's health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman's reproductive choices. . . . In contrast to Congress [in passing the Act banning the procedure], the District Courts made findings [striking down the Act] after full trials at which all parties had the opportunity to present their best evidence. The courts had the benefit of "much more extensive medical and scientific evidence . . . concerning the safety and necessity of intact D&Es." . . . During the District Court trials, "numerous" "extraordinarily accomplished" and "very experienced" medical experts explained that, in certain circumstances and for certain women, intact D&E is safer than alternative procedures and necessary to protect women's health. . . . Ultimately, the Court admits that "moral concerns" are at work, concerns that could yield prohibitions on any abortion. . . . Notably, the concerns expressed are untethered to any ground genuinely serving the Government's interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent. . . . Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from "[s]evere depression and loss of esteem." . Because of women's fragile emotional state and because of the "bond of love the mother has for her child," the Court worries, doctors may withhold information about the nature of the intact D&E procedure. . . .8 The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. . . . Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety. This way of thinking reflects ancient notions about women's place in the family and under the Constitution—ideas that have long since been discredited. . . . Though today's majority may regard women's feelings on the matter as "self-evident," . . . this Court has repeatedly confirmed that "[t]he destiny of the woman must be shaped ... on her own conception of her spiritual imperatives and her place in society." . . . . . . The Court's hostility to the right Roe and Casey secured is not concealed. . . . If there is anything at all redemptive to be said of today's opinion, it is that the Court is not willing to foreclose entirely a constitutional challenge to the Act. "The Act is open," the Court states, "to a proper as-applied challenge in a discrete case." . . . Though today's opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of "the rule of law" and the "principles of stare decisis." Congress imposed a ban despite our clear prior holdings that the State cannot proscribe an abortion procedure when its use is necessary to protect a woman's health. . . . Although Congress' findings could not withstand the crucible of trial, the Court defers to the legislative override of our Constitution-based rulings. . . . A decision so at odds with our jurisprudence should not have staying power. In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court's defense of the statute provides no saving explanation. In candor, the Act, and the Court's defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court—and with increasing comprehension of its centrality to women's lives. . . . When "a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue."
So said the founder of Operation Rescue, a militant anti-choice group that blockaded abortion providers, in 2003. The U.S. Supreme Court decision (Gonzales v. Carhart) upholding the federal abortion ban is the fruition of that public relations goldmine. It is a travesty of language bought and repeated endlessly by journalists who were sometimes uninformed and sometimes just too lazy to get it right. Indeed, the travesty of language around abortion is so pervasive that even Justice Anthony Kennedy, writing the decision for the court’s majority, in addition to using the inaccurate term “partial birth abortion,” also referred to the  “abortion doctor” repeatedly in the ruling. Why did he not simply refer to doctors as “doctors,” or “ob/gyns”? If another surgical procedure were under scrutiny, would he have he referred to “tonsillectomy doctor” or “hysterectomy doctor”? Of course not. But those who want to take away entirely a woman’s human right to make her own childbearing decisions have used the term “abortion doctor” for so long as an epithet that they have succeeded in getting even the highest court in the land to adopt their language. Such bias is just the tip of the iceberg in the battle over what losing plaintiff Dr. Leroy Carhart has called “partial truth abortion.” There is no such thing as partial birth abortion. The term will be found in no medical book. It was coined in 1995 by Douglas Johnson, legislative director for the National Right-to-Life Committee, and former Congressional representative and current Florida appeals court judge Charles Canady explicitly to confuse, horrify, and deceive—to manipulate language with the intent of sensationalizing the abortion debate. In particular, they intended to take the focus away from the woman in order to place the greater value on the fetus. Leading medical associations all agreed it was a misleading term, but the media never checked their language and by 2001, 90% of articles were using the term without so much as a “so-called” attached. As I reported in my 2004 book The War on Choice, an AP managing editor admitted when challenged that “partial birth abortion” was emotionally loaded, but said they continued to use it because it was instantly recognizable. Another major daily newspaper editor admitted it wasn’t correct but said it was easier to use than alternatives. An almost identical abortion ban was found unconstitutional by a different Supreme Court in 2000. Elections have consequences. Since then, President George W. Bush has had the opportunity to appoint two new justices who are ideologically in synch with the biased language. That shift made all the difference to women today and tomorrow. Now we have a landmark Supreme Court decision, built upon the counterfeit foundation of a made-up term that the media accepted and used uncritically, and that has propelled the highest court to issue a ruling permitting a law that at a minimum:
1.Does not provide adequate exceptions for a woman’s health, which means that a fundamental legal principle of the primary importance of women's health has been overturned. 2. For the first time upholds a federal law that steps directly into the physician’s exam room and tells him or her what medical technique cannot be used even if the physician’s judgment is that it is the safest to protect a patient’s health and future fertility. 3. Will not reduce the number of abortions but will over time, according to the doctors who know women’s health best, cause an increase in medical complications, and possibly even deaths.
The public relations goldmine of those who aim for nothing less than to eliminate reproductive justice at all times from all women has paid off for them today. Language, after all, has consequences too.