The Abortion "Flap": Everyone is Missing the Point

Obama swung to the right! No, he didn't! Blah blah blah blah blah.

Obama has the same opinion has Feingold! Great!

No. Bad. They're both wrong.

Here's the real point: The passage of the so-called "Partial Birth Abortion Ban" was a loss for women's reproductive rights and a win for the Overtoning strategies of the right-wing, anti-women's rights folks.

The fact that Dems voted against it only because it didn't have a health exception for the woman also represents a victory for anti women's rights activists, because it shows that Ds bought into the basic "logic" of the need for such a ban.

They should have voted against it outright and absolutely, because it is unnecessary legislation and was just another piece of anti-abortion and anti-women's rights propaganda, and part of the multifaceted approach of the rightwing pro-misogyny forces.

The point is, whether or not Senator Obama or Senator Whoever means this or that about "mental distress" or the range and interpretation of the health exception, the anti-women activists have still won, because the concept of the necessity of a ban has been accepted and its just a matter of crucial details. Supporting the concept of the so-called Partial Birth Abortion Ban with the "proper" exceptions for the woman's health is still a victory for pro-misogyny activists.

The so-called Partial Birth Abortion Ban was always a red-herring, a political drama for the purposes of anti-abortion, anti-woman propaganda.

IANAL and I realize that Roe v. Wade is considered even by many pro-choice legal minds to be a poorly crafted decision, but it already addresses the concerns of late-term abortion. A ban was not needed.

Here's the relevant part of Justice Blackmun's majority opinion:

This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion [p164] during that period, except when it is necessary to preserve the life or health of the mother.

This part of the decision already grants states the right to ban abortion, if they have an exception for the health of the mother. Why is a federal ban required? It's not.

So, where did the impetus for a federal ban come from? From the anti-abortion, pro-misogyny forces of the National Right to Life Committee.

After a physician presented a paper at a conference of the National Abortion Federation describing the new procedure ["dilation and extraction," or D&X, and "intact D&E,"], the NRLC commissioned drawings to illustrate it and published them in booklet form, as well as placing them as paid advertisements in newspapers to build public opposition. In an interview with The New Republic magazine in 1996, the NRLC's Douglas Johnson explained that the term was thought up in hopes that "as the public learns what a 'partial-birth abortion' is, they might also learn something about other abortion methods, and that this would foster a growing opposition to abortion."

In 1995, Rep. Charles Canady (R-FL) included the term as part of a bill he proposed that would make it a federal crime to perform a "partial-birth" abortion.

Source

The plan for a federal ban was part of the propaganda war to demonize women who seek abortions and doctors who perform them; to chip away at Roe; and to help establish fetal rights by concretizing the debatable moment of viability. Indeed, the number of these procedures performed after the point of viability is a minute percentage of abortions overall:

According to the Alan Guttmacher Institute, an abortion-rights research group that conducts surveys of the nation's abortion doctors, about 15,000 abortions were performed in the year 2000 on women 20 weeks or more along in their pregnancies; the vast majority were between the 20th and 24th week. Of those, only about 2,200 D&X abortions were performed, or about 0.2 percent of the 1.3 million abortions believed to be performed that year.

And contrary to the claims of some abortion opponents, most such abortions do not take place in the third trimester of pregnancy, or after fetal "viability." Indeed, when some members of Congress tried to amend the bill to ban only those procedures that take place after viability, abortion opponents complained that would leave most of the procedures legal.

Source

So, there you have it. The federal ban, the constitutionality of which has now been upheld by SCOTUS in 2007, was a clear victory for anti-abortion, pro-misogyny forces, especially because so many pro-choice Democrats got caught up and still are caught up in the need for the ban at all, just so long as it has the proper exceptions for a woman's health.

Remember, it was unnecessary legislation, as Roe already had laid out the contours for permissible State intervention after viability. As Yale Law Professor Jack Balkin explains Blackmun's trimester solution in Roe:

Well, the basic idea of the trimester framework that Justice [Harry] Blackmun came up with in the Roe opinion was that in the first trimester, the first three months, states could have very few regulations of the right to abortion. Basically, the decision to have an abortion was between the woman and her physician. States could require that a licensed physician perform the abortion, but outside of that, there were very few regulations.

In the second trimester, until about the point of viability, states could have health regulations that would help secure the health of the mother, but what they couldn't do was pass regulations that would restrict abortion for reasons other than securing health.

Then after viability came the third trimester. And in the third trimester, the Court said that states could prohibit, regulate or even completely prohibit abortions except where it was necessary to preserve the life or the health of the mother. So what you have in effect is a three-stage set of rules all throughout the pregnancy that tell states what they can regulate and what they can't regulate. That was the trimester system.

Source

IMHO: The true pro-woman, pro-choice position would be to have rejected the ban.

So did Obama swing right or not? I dunno.

My point is the whole pro-choice, pro-women's rights movement was jerked rightward, when pro-choice Dems bought into the false representation of the need to do the ban correctly, rather than reject it outright.

P.S. We shouldn't ever say "partial-birth abortion." Actually, I shouldn't have even said, "so-called partial-birth abortion"--it's got a name--dilation and extraction, D&X. Partial-birth abortion is a RW syntagm--like "tactical nuclear weapon"--a manipulation of language designed to advance a certain agenda.