Below the Belt: Folie à Cinq -- Madness, Not Justice

"Without trust there is nothing," so says an old adage. The recent U.S. Supreme Court decision in Gonzalez v. Carhart demonstrates, however, that without trust there can be worse than nothing.

With this decision, the court's majority inscribed in constitutional law both insulting paternalism and a profound distrust of this country's women, families, and medical professionals. Even worse, the majority opinion insulted all of us with reasoning that was, in a word, sketchy.

The consequences are already making headlines, with states rushing to enact new anti-reproductive rights laws. The ruling's pat on the back to fetal-right-to-lifers has prompted everything from new proposals to inflict more unreasonable regulations on clinics, to a full-out ban on abortion passed by the North Dakota's legislature—not to mention the two state abortion procedure bans (which had previously been found unconstitutional) that are now pulling a U-turn for reconsideration in light of Gonzales.

Unfortunately, the very real effect on families will not likely make many headlines. Annually there are a few thousand expectant mothers like Coreen Costello—and I say expectant mothers because it is most often women with wanted pregnancies who end up needing this particular procedure late in a pregnancy that has turned tragic—who will now be barred from the procedure safest for them (and most likely to preserve their fertility for the future). And even more women at earlier stages of pregnancy, confronted with grave health issues, will now also be in heightened danger of becoming infertile and/or suffering serious health consequences because they no longer have the option of undergoing the now-banned intact D&E procedure.

Why? Because five men on a glorified bench don't think the American College of Obstetricians and Gynecologists (ACOG)—which comprises over 95% of all board-certified obstetrician-gynecologists—is a "substantial medical authority." Yes, the ACOG had determined that this particular procedure "may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision." But that wasn't good enough for the faux doctors on the Supreme Court. So a woman who may suffer blindness or any of a number of serious health consequences will be denied the procedure that her doctor believes is the safest for her health, and the doctor must use an alternate procedure (Dr. Justice Kennedy kindly suggested some alternatives) that is less safe. Where does this stop?

The Gang of Five, which expressed "ethical and moral concerns," also has a benevolent motive—they want to protect us from ourselves, saying that "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." It seems? Of course they admit they could "find no reliable data to measure the phenomenon [of women regretting their abortions]" but they're really, really sure it exists and therefore they're going to ban a medical procedure, and force the use of a less-safe procedure, to prevent potential regret over what type of procedure was used? Sketchy to be sure. So much for the facts and the law.

The decision consistently leans upon superficial gleanings, like the idea of women's innate maternal bonds and potential regret for an abortion, and even resorts to straight-up preaching at times: "Respect for human life finds an ultimate expression in the bond of love the mother has for her child." Says who? Are we witnessing a shared delusion, a folie à cinq, here? Sorry Justices, but it seems five of you are sharing the delusion that you're all-knowing.

And I have to ask whether there could there be a connection between the majority's elevation of "moral concerns" over health concerns, and the fact that all five Catholic justices made up the entire five-member majority in this case. Could they actually believe that they are protecting women from something worse than ill health—something their religion considers a mortal sin?

Aside from the church, it also seems that this party of five may have had a tête-à-tête with the writers of South Dakota's complete abortion ban (which, like the procedure ban upheld in Gonzales, had no health exception), that was signed into law in spring 2006, and promptly overturned by voters last fall. Check out the similarity in rhetoric between the above quote and this excerpt from South Dakota's HB 1215: " [T]o fully protect the rights, interests, and health of the pregnant mother, the rights, interest, and life of her unborn child, and the mother's fundamental natural intrinsic right to a relationship with her child, abortions in South Dakota should be prohibited."

I would be remiss in not recounting to you, as well, the last line of the "report" with which the South Dakota Legislature explicitly "concurred" in the text of HB 1215: "This relationship [between mother and child], its beauty, its survival, its benefits to the mother and child, and its benefits to the State of South Dakota, and society as a whole, all rest in the self-evident truth that a mother is not the owner of her child's life, she is the trustee of it." (Download this PDF for more information).

While this point is not explicitly made in Kennedy's opinion, it rests behind each mention of how "self-evident" it is that a woman "comes to regret her choice to abort...." And of course, if they regret their abortions, the State must fly swiftly to the rescue and protect women from themselves! Indeed, it was only about a century ago that such a paternalistic, sexist approach was taken for granted by the Supreme Court. In a ruling which upheld legislation limiting how many hours a woman could work outside the home, the majority opinion said that women's "physical structure and proper discharge of her maternal functions—having in view not merely her own health, but the well-being of the race—justify legislation to protect her from the greed as well as the passion of man." Muller v. Oregon, 208 U.S. 412 (1908).

It might be 2007, but Kennedy, Roberts, Alito, Scalia, and Thomas are partying like it's 1908.

Just how long do we expect it to take to move from a federal ban on an abortion procedure to a federal extraction of all abortion rights? Considering how the U.S. Supreme Court has chucked precedent into the nearest wastebin, rejected eminent medical authority, and otherwise bent over backward to pull just one reproductive healthcare option off the table, it certainly won't take long. And, seeing how the same right-wing rhetoric employed at the state level to completely prohibit the right to abortion was injected into this decision, it's likely that this court has the same end result in mind.

So, now that this government is officially throwing our rights out the window, we have got to fight back like our lives depend on it—because they do. We absolutely cannot afford to allow the right wing to drag us back in time. Allies in the House and the Senate introduced the Freedom of Choice Act (FOCA) last week, and I urge you to contact your senators and representatives and let them know how important it is that they support FOCA in order to guarantee reproductive justice for all women.

I'm also counting on you and every feminist in this country to make certain that in 2008, we elect a Congress and a president who will remedy the damage done to women's rights and move us forward toward equality. This court and the Bush administration might not trust us, but I trust you to take action to create the change we so desperately need.

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