Cast Thy Blame Where Blame Is Due

by publius

I haven't read anything about it yet, but I saw (via LGM) that the Supreme Court upheld the partial-birth abortion ban. I'm swamped with work and other things, and will write about it when I can. But very quickly, I wanted to make one important point.

This case was not decided today. It was decided on November 2, 2004. Don't blame the Court, blame the American people. They voted in a Republican President and the entirely-predictable consequence was increasing restrictions on abortions. In fact, Bush is one Justice Stevens illness away from overturning Roe entirely. And for what it's worth, if any of the current Republican candidates win, Roe is over for at least a generation. Maybe you think that's good, maybe you don't. That's not the point. The point is that voting for Republicans has consequences and this is one of them. And these things are worth thinking about when you base your vote on things like John Kerry's windsurfing, or Bush's probably-fun-to-drink-with-ness.

If Bush gets one more Justice, we will enter an entirely new age of constitutional law. (And if and when that happens, I think people will start coming around to my own process-theory skepticism of judicial power).

Comments

[OCSteve]

I'd consider that freakin' insane

Why? It seemed perfectly reasonable to me at the time. I was making a life altering decision that impacted my wife as much as me. Counseling seemed reasonable, and a week of reflection after counseling seemed perfectly reasonable. It also seemed reasonable that my wife acknowledge she was involved in the decision.

I didn’t research state law and it was years ago – I believe it was the surgeon’s requirements. Still, it did not strike me as insane or even unreasonable.

Turn it around though… Would the OB/Gyn be able to impose their personal requirements in that way?

[Steve]

Why? It seemed perfectly reasonable to me at the time.

The idea of involving my wife in the decision would not, of course, strike me as unusual in any way. It's the concept of the government ordering me to check with my wife that I have a problem with. By the same token, I see nothing wrong with a family deciding to have only one or two kids, but I would have a big problem with the government telling you that you can only have one or two kids.

In most cases, a law mandating spousal consent will have no practical effect because most people involve their spouse in these sorts of important decisions regardless. The problem with such a law is that it leaves no room for the exceptional case. If a woman, hypothetically, insists on getting her tubes tied without telling her husband, it strikes me that there are issues in that marriage that go well beyond anything we can fix by passing a law.

[Jesurgislac]

OCSteve: Why? It seemed perfectly reasonable to me at the time. I was making a life altering decision that impacted my wife as much as me.

No, it really didn't.

Seriously, I agree with Steve: I can see why a hospital would prefer that a spouse is aware of their partner's decision to have a vasectomy/have their tubes tied, but the idea that a spouse should be able to veto a vasectomy or a tubal ligation for their partner is just... wrong.

Sebastian: 3. Murder Suicide with children is usually men.

I wasn't able to find any DoJ stats about murder-suicide in response to Phil's comment, but I did find a useful page of stats indicating that after the age of 1 week and until the age of 5, male and female parents are almost equally likely to murder their children. (Between birth and 1 week, mothers are overwhelmingly more likely.) Roughly speaking, the older a child is when murdered by a parent, the more likely it is that the parent who commits the murder is the child's father.

[Brett Bellmore]

"but the idea that a spouse should be able to veto a vasectomy or a tubal ligation for their partner is just... wrong."

No more wrong than the idea that a spouse should be able to veto remortgaging the house, or any of a large number of other decisions. Marriage is a partnership, and the ability to procreate is one of the partnership's assets, not to be unilaterally disposed of.

[Jesurgislac]

Sebastian: Excuse me. I did no such thing.

You argued that if 4% of women decide to have an abortion at 16-18 weeks because their partner has broken up with them, that means that they might equally well be willing to have an abortion at 33 weeks. To be precise, you said: I see no reason to believe that no-one who was willing to wait until month 5 or 6 would therefore be willing to do it in month 7. It is completely NOT unthinkable. That's nonsense, unless you are entirely ignorant of the difference between a pregnancy 18 weeks along and a pregnancy 33 weeks along.

[Jesurgislac]

(Also, you confused "at the end of the fourth month" with "month 5 or 6"...)

[Jesurgislac]

Brett: No more wrong than the idea that a spouse should be able to veto remortgaging the house, or any of a large number of other decisions.

Er... no.

On two levels. One: a house (or a car, or a TV) is not the same as your spouse's body. You own a house. You don't own your spouse.

Two: the ability to procreate isn't joint property. A woman whose husband has had a vasectomy still has the ability to have children: they just won't be her husband's children genetically. A man whose wife has had a tubal ligation, likewise.

[Sebastian Holsclaw]

"You argued that if 4% of women decide to have an abortion at 16-18 weeks because their partner has broken up with them, that means that they might equally well be willing to have an abortion at 33 weeks."

I can't get to the study right now, but I thought it was after the 4th month (which would put it in week 17+. And I didn't say EQUALLY is said "AT ALL". I don't need 4% of later term abortions to be on that basis, I need merely a handful for it to be concerning. You say both that it NEVER happens (which frankly is a silly thing to say without evidence, all sorts of 'unthinkable' things happen on a regular basis when the numbers start getting in the thousands) and that it is unthinkable that it could happen.

It isn't any more unthinkable than standard infanticide, which does in fact happen.

[Brett Bellmore]

Jes, I'm explaining the basis of the policy. That you happen to disapprove of that basis doesn't change it. The legal presumption is that married couples marry at least in part to have children, with each other, and they are thus precluded from unilaterally foreclosing this possiblity.

[Steve]

Marriage is a partnership, and the ability to procreate is one of the partnership's assets, not to be unilaterally disposed of.

I confess, it never would have occurred to me in a million years to think of it this way.

The thing is, if we accept that neither spouse has the power to force the other to procreate (and we do accept that, right?), it's hard to defend the position that neither party can surrender their ability to procreate permanently. It takes two willing parties to make a baby, so if one of them says "I'm not willing, and never will be," what basis does the other spouse have to lodge an objection?

You're free to marry someone who agrees never to give up the ability to procreate without your permission, and to refuse to marry anyone who doesn't agree to that condition - but if, instead, you choose to marry someone who feels differently, I certainly wouldn't go expecting the government to impose that condition for you!

[Jesurgislac]

You say both that it NEVER happens (which frankly is a silly thing to say without evidence

Oh, come OFF it, Sebastian. You've been repeatedly asked to show ANY evidence that anything like this happening, and you can't. You can't provide statistical data: you can't provide anecdotal data: you can't provide so much as a newsy paragraph about a woman who had an abortion at 33 weeks for any reason at all, good, bad, or indifferent!

All you've got is your assertion that you're sure it does happen. So don't you start throwing stones - your house is built of pure glass, and you can't afford to.

[OCSteve]

Seriously, I agree with Steve: I can see why a hospital would prefer that a spouse is aware of their partner's decision to have a vasectomy/have their tubes tied, but the idea that a spouse should be able to veto a vasectomy or a tubal ligation for their partner is just... wrong.

I agree with you both at some level. But forget the state. I believe this was a personal preference of the surgeon. And he refused to proceed without spousal consent. Was it an undue burden for me to sit through the counseling and wait a week? Would it have been an undue burden for me to find another surgeon? If it was and I sued, should the courts decide that no doctor could require counseling, a waiting period, or spousal consent for the procedure?

[Steve]

I'm totally fine with the doctor or the hospital imposing whatever rules they deem appropriate. I certainly wouldn't want the government to force a doctor to perform any procedure he/she didn't feel comfortable with. For example, I may be pro-choice, but that doesn't mean I think the government ought to compel individual doctors to perform abortions.

If I were in your shoes, OCSteve, I suspect I would have found everything just as reasonable as you did.

[Jesurgislac]

OCSteve: I believe this was a personal preference of the surgeon. And he refused to proceed without spousal consent.

Oh, right. Well, fair enough.

I didn't mean to sound in any way personally critical, and I'm sorry if I did. I think that ideally, yes, a couple sit down together and talk through a decision for one or both of them to get sterilised: I just would disagree with any legislation requiring that.

Was it an undue burden for me to sit through the counseling and wait a week?

Absolutely not. I've already said I agree with that.

Would it have been an undue burden for me to find another surgeon?

Well, hopefully not! The thing about a surgeon imposing the rules about what they feel comfortable with, rather than a hospital or a state legislature, is that you can go talk to the surgeon - explain personal circumstances, ask for exceptions in the surgeon's general principle. (Even with a hospital, you can do that: I just think it would likely be easier with an individual.)

[dutchmarbel]

1. Late-term abortions are carried out, as far as anyone has ever been able to discover, because the woman is going to die otherwise and the fetus is beyond saving. The notion that it's justified to require a woman in this state to have pre-abortion counselling and a mandatory waiting period goes beyond nonsensical right into Monty Python style black comedy. Exactly what is the counsellor supposed to say? "Are you sure you really want that dead fetus out of you? Have you considered letting it rot inside you until it kills you?"

Claims that women can have the fetus killed at 7.5 months to "get back" at their boyfriend for splitting up with them? Find an example. Just one.

Chiming in for a short comment.
I actually gave a link to the women who had an abortion when she suddenly found out she was pregnant. She aborted less than two weeks later, the baby/fetus (24 weeks) survived and she is now happy with her second son.
I also linked to the comments about UK abortions for cleft palate and clubfeet. They only talk about 'late abortions' which is later than 20 (or 25 in those years I think) weeks but doesn't say how much later.
My husband actually was quite shocked when his ex (pregnant from her new guy) wrote him that she would happily abort it if he would take her back. Don't know what month her pregnancy was in, but she had felt life iirc.
How about this case?

Further investigations by this newspaper revealed that Dr Adlakha, a GP who runs her own surgery in Birmingham, admitted taking an 18-year-old patient to Ginemedex last year for the abortion of a healthy 31 and a half-week foetus so that she did not interrupt her studies.

Dr Adlakha, who was put in touch with Ginemedex by BPAS, said that the clinic's staff had listed the abortion as having been performed at 22 weeks, to circumvent Spanish law. She also advised two undercover reporters on how to procure a similar abortion at the clinic for their teenage daughter, even offering advice on how to book cheap flights.

That clinic has quite a rep.

I've linked to my niece's photopage; she was born at 27 weeks and I cannot understand how someone can say she had rights on day 1 and not on day -1.

(Eating a heavy curry meal, for example: there are known examples of women who made the mistake of over-indulging in a curry house late in pregnancy.)

I wish... but it's all myth. I was a week overdue with all three, I had hugh babies and I've tried *all* recommendations to get labor starting. Weeks and weeks of trying...

[Jesurgislac]

Marbel: I also linked to the comments about UK abortions for cleft palate and clubfeet. They only talk about 'late abortions' which is later than 20 (or 25 in those years I think) weeks but doesn't say how much later.

Abortion in the UK has never been legal after 28 weeks, and in practical terms, no doctor would abort after 24 weeks, because they count from the date of the woman's last period. So, "late abortions" means, between 20-24 weeks, even before the law changed in the 1990s to restrict abortion after 24 weeks, which now means it's practically impossible to get an abortion after 20 weeks.

Your link to the story about Saroj Adlakha and Shilpa Abrol seems to confirm what Sebastian denied: it really is impossible to keep this under wraps if it's happening.

The code word "for social reasons" suggests that this is part of the horror story of women who end up having abortions - sometimes repeatedly - because their culture and their families only value sons. (There's an excellent article here - India's Missing Daughters.

I think it's futile trying to attack individual women for this - what's needed, desperately, is a change in the culture. To value daughters equally with sons.

I've linked to my niece's photopage; she was born at 27 weeks and I cannot understand how someone can say she had rights on day 1 and not on day -1.

Because before she was born, she could only have rights by removing rights from her mother. And I can't understand how you can say that your sister had rights before she was pregnant and after she was pregnant, but not during.

[Sebastian Holsclaw]

"Your link to the story about Saroj Adlakha and Shilpa Abrol seems to confirm what Sebastian denied: it really is impossible to keep this under wraps if it's happening."

Now there is turning on a dime. First the lack of news reports was proof that it never happened. Now dutchmarbel's report is proof that it never happens because you couldn't keep it under wraps?

[Sebastian Holsclaw]

"'And I can't understand how you can say that your sister had rights before she was pregnant and after she was pregnant, but not during."

She had them at all times, but one person's rights sometimes have to get balanced against another person's rights. Especially when you are talking about the life or death of either party.

[Jesurgislac]

No, Sebastian: I concede that Marbel did what you couldn't, and found an example of a woman having an abortion at 31.5 weeks.

My response was intended to give context to this happening - my guess - though the case is still before the court, and therefore there isn't much comment in the newspapers about it - is that the abortion was part of the systematic culture of depreciating daughters, which still exists in large parts of India, and, unfortunately, in some communities in the UK. Attacking individual women for this is starting at the wrong end: what's essential is that the culture changes.

And my other point was that you asserted that it didn't matter that you couldn't find any examples of such late abortions occurring, because - you claimed - there was a systematic cover-up, conspiracy of silence, surrounding these late-term abortions. Well, it doesn't look as if this systematic cover-up/conspiracy of silence was very effective in Dr Adlakha's case, does it?

[Jesurgislac]

She had them at all times

If she wasn't permitted to make medical decisions for herself, then she didn't.

[Sebastian Holsclaw]

"Well, it doesn't look as if this systematic cover-up/conspiracy of silence was very effective in Dr Adlakha's case, does it?"

Huh? According to the article, Ginemedex has a reputation for doing late term abortions. A reputation isn't one.

And I gave you the example of the notorious US doctor in the previous thread, but you dismissed the testimony of his seceretary.

[Phil]

Roughly speaking, the older a child is when murdered by a parent, the more likely it is that the parent who commits the murder is the child's father.

This is probably, among other reasons, because we don't do enough to recognize the signs of and help women with postpartum depression, nor do we generally do real well with mental health care in this country. Not that that's an excuse to kill your kids, but it's certainly a factor.

Anyhoo, I'm curious, since you seem not to have heeded my advice that frustratedly restating something doesn't oblige others to believe it: This formulation of yours that one cannot assert a right which necessarily entails the limiting of someone else's rights -- do you support that as a general principle, or only in the very, very specific case of abortion?

Because it sounds to me like it's the latter, which makes it, well, dogma, and poorly-reasoned dogma, if you'd stop for a second to think about it.

[jrudkis]

Shouldn't a woman have the right to not carry a female fetus to term?

[CharleyCarp]

I've been away,but . . .

I re-read Casey in the course of commenting above, and I think that Justices http://www.law.cornell.edu/supct/html/91-744.ZX2.html>Blackmun and http://www.law.cornell.edu/supct/html/91-744.ZX1.html>Stevens both discussed the counselling and consent regulations, among other points, coherently. Jes, you might really get something from re-reading both opinions.

On OCS's spousal consent front, I had my procedure in DC. The doc asked a few questions of me about why and why now, and, satisfied that it was a rational choice, set about the work. No need to bring in the wife.

[Jesurgislac]

Phil: Anyhoo, I'm curious, since you seem not to have heeded my advice that frustratedly restating something doesn't oblige others to believe it

Nor has anyone else on this thread, Phil. For some reason - you may not have noticed this - giving advice unasked tends to receive all the attention and respect it deserves, and I am paying you all the attention and respect I feel you deserve.

[Phil]

Oh, please -- motes, beams, etc. etc. If I had a dime for every piece of unasked advice you've given Sebastian alone I could retire to Maui.

In any case, I will consider that, unless corrected, tacit admission that you do in fact consider the formulation dogma in the specific case of abortion and not a general statement of principle concerning rights. So thanks for confirming my suspicions.