Adam Rice

My life and the world around me

Another wrinkle in the abortion debate

The original Roe v Wade decision was founded on the justices discerning a right to privacy lurking in the Constitution. This has been criticized on occasion, by Justice Ginsberg among others, as a weak foundation for an important right, but there it is.

The most recent attack on abortion rights at the federal level is the “Partial-Birth Abortion Ban Act.” This law itself is under attack at the moment. As part of its defense, the Justice Department originally sought to subpoena abortion records (though it has now withdrawn this “in the interest of a prompt completion of the trial”); these records would be used to make the case that late-term abortions are never medically necessary, hence a ban could be upheld. If the law stands, doctors who perform late-term abortions will be prosecuted, and will be required to prove medical necessity. As the NY Times put it

But once this question is resolved, the next round of subpoenas will have a different purpose. It won’t be to determine whether partial-birth abortion is ever necessary. It will be to determine whether each partial-birth abortion was necessary.

If the ban is upheld, any doctor found to have performed the procedure will be subject to a two-year prison term unless he or she can prove that the procedure was “necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury.” To settle that question, the court will need details about the patient.

What’s interesting is the reversal in legal thinking: Once upon a time, the right to an abortion was based on the right to privacy; now, the Justice Department’s position is something more like “if you want that abortion, you forfeit your right to privacy.

1 Comment

  1. Michael Turner

    30 April 2004 at 12:18 am

    There is no clear “right to privacy” in the Bill of Rights. At best, you can point to language about “unreasonable search and seizure.” The abortion rights problem still hinges on the definition of “human being” for purposes of interpretations of rights. The pro-life crowd might consider abortion murder, but if there was an argument that an abortion is also an invasion of the privacy rights of the fetus, that’s also grist for their mill. They have, after all, been known to stoop lower.

    The division of legal classifications of abortion into trimesters was an attempt to use evolved notions of privacy rights to support early-term abortion. Being 3 months pregnant is something that even a relatively slim woman can keep secret. Roe v. Wade was as much about the privacy rights of doctors performing abortions as it was about the privacy rights of the woman. It may seem odd in the extreme that one can have publicly funded abortions under a legal protection based on privacy, but that’s how law works sometimes.

    The so-called “Partial-Birth” procedure doesn’t enjoy these privacy protection arguments quite as strongly because a woman going into a clinic looking quite pregnant indeed, and coming out looking not pregnant at all, can hardly be said to have any privacy about the issue of whether she was pregnant.

    I’ve never been comfortable with the hazy notion of privacy rights being used to accommodate abortion. It’s always been an issue, in every society.

    In Peter Mathiessen’s book about encountering stone age cultures in Papua New Guinea, he recounts the abortion practices of that society, where abortions are kept as a kind of open secret among women, who know how to get them done with relatively little health risk. “Men don’t know everything we do” is how they put it. In fact, the biggest consideration is not in how dangerous it is for them, but in how many a woman has had – women who have had several are often counseled against having more, lest they endanger their future reproductive capacity. However, these are almost always early abortions. A woman who tried to abort a child much later would probably find herself on her own, without the support of the tribe, and might even be considered a baby-killer if she managed to survive the experience. She certainly wouldn’t enjoy any privacy on the matter, unless she were to go off and join some distant tribe.

    This isn’t an area where I expect easy answers.

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