X-From_: kpollitt at thenation.com Sun Nov 5 19:04:12 2000 Date: Sun, 05 Nov 2000 19:04:21 +0000 From: Katha Pollitt <kpollitt at thenation.com> MIME-Version: 1.0 To: dhenwood at panix.com Subject: [Fwd: Fwd: Re: Sarah Jessica Parker pressed into service]
Hi Doug -- you can post this if you like
Stenberg v Carhart was the "partial birth abortion" ban case which originated in Nebraska and was decided by SC last June (?). Justice Kennedy, hitherto a reliable pro-choice vote, sided with the 3 anti-Roe justices Rehnquist,Scalia and thomas. He said he thought partial birth abortion was horrible and couldn't understand why it would be wrong to ban it, etc.
Why do pro-choice mavens think this means Kennedy might vote to overturn Roe? Well, in the first place he bought a very weak case-- partial birth abortion wasn't even explicitly defined in the Nebraska bill, a fact which was brought out in oral argument. Second, the bans clearly DO violate Roe, by permitting the criminalization of a procedure performed during the second trimester, when such bans are explicitly forbidden by Roe, and by disregarding women's health which Roe explicitly says must come first at EVERY STAGE of pregnancy. In essence, Kennedy said -- I don't care if this mysterious ill-defined procedure is the only method that would preserve a woman's fertility, or avoid injuring her -- it's too upsetting, and so states can say, too bad for her. This was the first time he voted to explicitly disregard women's health in favor of the fetus , or rather, the aesthetic objections of anti-choicers. Pro-choicers are right to worry that he may be moving away from the pro-choice side. Of course, no one can say what he would do if given the chance to overturn Roe, but certainly one is entitled to worry.
It is true that Gore and Clinton have both said they would sign partial-birth bans that included a health exception. The lack of a health exception is the sticking point and it is not a trivial detail (that is, unless you are a man who will never need this particular procedure). Your correspondent seems to think it's okay for a women to be injured by being denied the procedure that her doctor thinks is the best one for her. I wonder how he'd feel if his doctor couldn't give him the form of prostate surgery that would best preserve his fertility, say, because some religious fanatics and rightwingers found it "offensive"? It is quite shocking that Kennedy disregarded the question of women's health. That is where this case differs from Casey, which said undue burdens--that is, legal requirements that didn't significantly interfere with a woman's ability to have an abortion -- were okay. The dissenters in Carhart said, here's a case in which the interest of the fetus ought to take precedence over women's health. That is different!
I know lots of people who have been involved with abortion at the ground level for years -- providers, lawyers, advocates, researchers. I haven't found one who agrees with Ralph Nader, that noted gynecologist, on the question of abortion rights and the upcoming elections. You cannot imagine how angry pro-choice women are about his pooh-poohing of the danger to abortion.
Katha
Doug Henwood wrote:
>
> [Katha - any idea on what this is all about? - Doug]
>
> X-From_: owner-lbo-talk at dont.panix.com Sun Nov 5 17:14:39 2000
> X-Originating-IP: [205.188.197.187]
> From: "Justin Schwartz" <jkschw at hotmail.com>
> To: lbo-talk at lists.panix.com
> Subject: Re: Sarah Jessica Parker pressed into service
> Date: Sun, 05 Nov 2000 22:12:32 GMT
> Mime-Version: 1.0
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>
> I guess you must be right. I thought briefly about Stenberg, but
> concluded that it couldn't be what they meant for all the reasons you
> give here, and decidedf that "this year" was a mistake, --jks
>
> >
> >Planned Parenthood vs. Casey was a 1992 decision, not one "this year," so
> >can't be what they're referring to.
> >
> >NARAL must mean Stenberg v. Carhart, the 5-4 decision saying that
>laws banning
> >so-called "partial birth" abortions are (at least, as commonly written)
> >unconstitutional. There's info about the Carhart case at
> >http://supct.law.cornell.edu/supct/html/99-830.ZS.html .
> >
> >NARAL's claim is both hypocritical and inaccurate. Justice Kennedy, who was
> >one of the four dissenting votes in Carhart, voted with the
>majority in Casey,
> >and it doesn't appear his opinion has changed. Kennedy's dissent in Carhart
> >still seems to support Casey's "undue burden" standard, he just doesn't feel
> >that banning the "partial birth" proceedure but keeping other proceedures
> >available constitutes an undue burden.
> >
> >I think Kennedy's opinion is wrongheaded in many ways; but there's no reason
> >to think he'd vote to overturn Roe entirely, as NARAL knows very
>well. But if
> >they admitted that, they'd have to admit that Roe has a 6-3 majority, and is
> >more secure now than it was in either of the last two elections.
> >
> >I say the claim is hypocritical because the candidate they support
>has pledged
> >to sign legislation banning late-term abortions - legislation pretty similar
> >to what the court struck down in Carhart (although a little bit
>saner because
> >Gore would make an exception to protect the mother's health, whereas the law
> >in Carhart only had an exception to protect the mother's life).
> >
> >--BD
> >
> >----- Original Message -----
> >From: "Justin Schwartz" <jkschw at hotmail.com>
> >To: <lbo-talk at lists.panix.com>
> >Sent: Saturday, November 04, 2000 9:18 PM
> >Subject: Re: Sarah Jessica Parker pressed into service
> >
> >
> >:
> >: The case referred to is probably Planned Parenthood v. Casey,
>which replced
> >: the Roe trimester structure with the O'Connor "undue burden" standard for
> >: what a state can't do to limit a woman's right to choose. An
>"undue burden"
> >: is one that tees off Justice O'Connor. --jks
> >:
> >: >
> >: >
> >: > > The [NARAL] ad asks viewers to "please consider" the fact that a 5-4
> >: > > Supreme Court decision this year "narrowly protected" Roe v. Wade,
> >: > > noting, "A single vote saved a woman's right to choose."
> >: >
> >: >Does anyone know what decision that are referring to and where I could
> >: >find a summary?
> >: >
> >: >Michael
> >: >
> >: >__________________________________________________________________________
> >: >Michael Pollak................New York
>City..............mpollak at panix.com
> >: >
> >:
> >: _________________________________________________________________________
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