HEAT, NO LIGHT

By upholding a federal ban on an abortion procedure without reducing the number of abortions and by removing the court protection of a woman’s health while asserting that its ruling is in part justified to guard women from doing something they would “come to regret,” the Supreme Court Wednesday increased the level of divisiveness over abortion without adding a scintilla of understanding.

In his ruling, Justice Anthony Kennedy went out of his way to include repeated graphic descriptions of the abortion procedure often called intact dilation and extraction and commonly known as partial-birth abortion, blurred the question of medical necessity and referred to gynecologists as “abortion doctors.” Apparently, he was looking for a verbal fight from his more liberal colleagues, and he got one from Justice Ruth Bader Ginsburg, who wrote the dissent in the 5-4 decision.

Justice Kennedy leaned heavily on reasoning such as, “It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound, when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.”

In her dissent, Justice Ginsburg may not have been fighting fair – she relied on court precedent instead of emotionally wrenching descriptions. While doing so, she responded to the above lines, saying the court could have but didn’t require doctors to “inform women, accurately and adequately, of the different procedures and their attendant risks.” But her primary disagreement with the majority is that, while ignoring landmark abortion cases, 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.”

In the incremental limiting of the right to an abortion, this decision is important because it announces that the Supreme Court can dictate medical procedures without regard to a woman’s health. Justice Kennedy is clear that the ruling does not impose a substantial obstacle on getting an abortion, only on how the abortion, in these rare cases, would be performed. In doing so, he provides pro-life advocates a victory (and energizes their opponents as few issues could), while freeing the states to push this reasoning to its extreme.

The result will further divide an already divided nation on this issue.