Reply #53: an explanation why the federal ban is problematic

[onenote]

Previous decisions striking down "partial birth abortion" laws have criticized the absence of a "health of the mother" exception and have relied on factual findings regarding the medical need for and safety of such procedures in certain situations.

The federal legislation contains a series of very specific "factual findings" that state that the "moral, medical and ethical consensus" is that the practice of performing "partial birth abortions" is "never medically necessary". These findings go on to state that the procedure is "unnecessary to preserve the health of the mother" and, in fact, pose risks to the mother's health and, in some cases, her life. Based on this "finding" that "partial birth abortion" is "never medically indicated to preserve the health of the mother" the legislation declares that there is no constitutional need for a "health" exception.

There are two problems with this: first, the idea that Congress can make this finding takes the issue out of the hands of doctors, which is where it should be determined. I do not believe that that the medical evidence in fact supports the finding. And if the constitution can be subverted just because Congress "finds" that up is down or black is white, well...welcome to 1984, a couple of decades after the fact.

Finally, after blustering on for paragraph after paragraph with respect to the absence of any medical need, ever, for the procedure, the legislation does include an exception where the procedure is "necessary to save the life of the mother" due to a "physical" disorder, illness or injury. Of course, what if its unclear whether the mother will live or die? Is it "necessary". Its one of those things that's easier to know after the fact. For example, what if she's got a condition that's going to kill her, but going through with the pregnancy will kill her sooner, or prevent her from getting life-preserving treatment in a timely fashion.

In short, the problem is that the law pretends medical issues are all yes/no, either/or, life/death, black and white in nature. Ain't so. Never will be. And the fact that Congress wants to pretend otherwise is what's horribly scary.

onenote