I am generally no fan of Judge Posner's work, to put it mildly. There are times, though, when he puts aside his usual bag of tricks and simply gets it right. Mike's posting earlier today quotes extensively from Posner's dissent from the en banc decision in Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999). In addition to the paragraphs that Mike excerpts, I commend the following for your consideration:
"Imagine a married woman, pregnant, told by her physician that her life depends on her obtaining an abortion. He tells her it would be better from the standpoint of minimizing the risk to her of medical complications from the abortion for her to have a D & X. But, he adds, unfortunately the law prohibits the procedure. It does so not because the procedure kills the fetus, not because it risks worse complications for the woman than alternative procedures would do, not because it is a crueler or more painful or more disgusting method of terminating a pregnancy, but because the state wishes to make a statement of opposition to constitutional doctrine. A legislature may be taken to intend any consequences [*882] of its handiwork that are at once natural, highly probable, and wholly foreseeable (and foreseen). Here the intent is to block a woman from seeking an abortion when her doctor advises her that the best procedure for her is criminal." Id. at 881-82.
Powerful stuff. This discussion supports Posner's description of the cynical politics of the PBA movement, which he offers earlier in the dissent:
"The wave of 'partial birth' abortion statutes that broke over the nation after a description of the D & X procedure was publicized ... does not exhibit the legislative process at its best, whatever one thinks of abortion rights. Whipped up by activists who wanted to dramatize the ugliness of abortions and deter physicians from performing them, the public support for the laws was also based ... on sheer ignorance of the medical realities of late-term abortion. The uninformed thought the D & X procedure gratuitously cruel, akin to infanticide; they didn't realize that the only difference between it and the methods of late-term abortion that are conceded all round to be constitutionally privileged is which way the fetus's feet are pointing. Opposition to the bills that became these laws was at first muted not only by ignorance of the character of a late-term abortion but also by the fact that few women are likely to be affected by the laws. Circumstances conspired, as it were, to produce a set of laws that can fairly be described as irrational." Id. at 880.
Contrast this with the following from Justice Kennedy's opinion in yesterday's Carhart decision:
"[T]he government may use its voice and its regulatory authority to show its profound respect for the life within the woman. See, e.g., 505 U. S., at 873. The Act’s ban on abortions involving partial delivery of a living fetus furthers the Government’s objectives. Congress determined that such abortions are similar to the killing of a newborn infant. This Court has confirmed the validity of drawing boundaries to prevent practices that extinguish life and are close to actions that are condemned."
So, if Congress decides that one type of abortion is similar to killing a newborn infant, even though that method is in reality no more cruel or disturbing than other methods still available to her under the law (at least as the law currently stands), a woman's health may be put at risk. That is now the law of the land.