Roundup: Judges Hear Virgina Abortion Law Case

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Roundup: Judges Hear Virgina Abortion Law Case

Brady Swenson

Fourth U.S. Circuit Court of Appeals hears Virginia late-term abortion law twice deemed unconstitutional; Catholics chastise Fordham University for giving award to Justice Stephen Breyer; Prenatal testing and abortion; Anti-contraception candidate for House in Virginia.

Judges Hear Virgina Abortion Law Case

The full 4th U.S. Circuit Court of Appeals heard arguments yesterday
over a Virginia law banning a late-term abortion procedure twice struck
down by a panel of the same court.  Virginia’s 2003 law prohibiting the intact dilation and extraction procedure has been held unconstitutional in two 2-1 panel rulings, most
recently for imposing an undue burden on a woman’s right to obtain an
abortion.  The procedure is called "partial-birth abortion" by the anti-choice movement, a term coined to mislead and generate popular support for its position against this rare procedure, used when a dilation and extraction procedure is deemed too dangerous for the mother:

Stenberg v. Carhart,
in the year 2000, struck down a Nebraska law that attempted to ban
certain forms of pre-viability second-trimester abortion. With the
moderate Sandra Day O’Conner still on the court, the importance of
having a health exception for the mother and the broad wording of the
Nebraska law meant that it could be interpreted to ban abortion more
broadly, which is why the court rejected it.

In her article summarizing the case, Greenhouse explained
the birth of a new right-wing strategy, the invention of the term
"partial-birth abortion: "Anti-abortion forces coined the term in the
mid-1990’s and have focused on graphic descriptions of the procedure as
a way of undermining public support for abortion. The ruling today
represents a significant setback to that strategy."

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Intact dilation and extraction,
the procedure targeted by the right wing as partial-birth abortion, was
invented in the 1990s as an alternative to the sometimes, more
dangerous dilation and evacuation.
Around the time of the 2000 case, intact dilation and extraction
counted for less than .2% of all abortions performed, and was often
used when the other procedure was riskier, the fetus had died in the
womb, or would not live long past birth. But the purpose of the right wing’s campaign against the procedure was to paint women seeking abortions as irresponsible and uncompassionate.

The debate during this third appeal on behalf of this law twice deemed unconstitutional is centering around the consequenses a doctor who performed the procedure would face:

The three judges on the two prior panels — M. Blane Michael and
Diana Gribbon Motz in the majority and Paul V. Niemeyer the dissenter
— dominated questioning yesterday by the 11 judges in attendance.

Michael complained that unlike the federal law, the Virginia law is
written in such a way that a physician who intends to perform a regular
D&E could face prosecution if it accidentally turns into an intact

"He faces a credible threat of prosecution every day he performs one
of these," Michael said. But Thro said that the state law, "does not
apply to accidental, intact D&Es."

But, countered Michael, "the question is, does [the possibility]
chill a doctor?" Such a chill could interfere with a woman’s right to
have an abortion, he said.

Stephanie Toti with the Center for Reproductive Rights told the
judges there were important differences in the definitions used in the
state and federal laws. "It’s very plain the [Virginia] statute does
criminalize accidental [intact] D&Es," she said.

Catholic Church Chastises Fordham University for Awarding Ethics Prize to Abortion Rights Supporter Justice Stephen Breyer
Fordham alumni and Cardinal Edward Egan,
the leader of the Catholic church in New York, are up in arms over
Fordham University handing its Fordham-Stein Ethics Prize to Justice Stephen Breyer, a supporter of abortion rights. Cardinal
Egan, according to the AP, has spoken to the Catholic university’s leaders to ensure “that a mistake of this sort will not happen again.”

According to the AP, more than 1,100 Fordham alumni and others have signed a petition calling for the award to be revoked. The Cardinal Newman Society,
a conservative Catholic group based in Manassas, Va., is leading the
protest. The group recently objected to Santa Clara University’s
decision to honor former Clinton administration official and U.S. Rep.
Leon Panetta. Patrick Reilly, the society’s president, has called
Panetta “a leading advocate of the Culture of Death.”

The argument against Breyer — one of two Jewish justices on the
Court (the other is Ruth Bader Ginsburg) — is that he wrote the
majority opinion in Steinberg v. Carhart, the 2000 case that struck
down a Nebraska law banning partial-birth abortion. He also dissented
in a 2007 case that upheld a federal law banning the same procedure.


Pre-Birth Defects

William Saletan of writes this morning about new prenatal tests that can screen fetuses for 150 to 200 genetic abnormalities.  The advent of prenatal genetic testing was the subject of articles in the Wall Street Journal and Washington Post over the weekend.  In the Washington Post article Leslie G. Biesecker of the federal government’s National Human Genome Research Institute calls the technology "a classic Pandora’s box."  She continued, "Like any powerful technology, it solves some problems while at the
same time creating new ones. How you use a powerful technology decides
whether it’s good or bad."  Aside from the debate about the ethics of providing this kind of guided speculation on the fetus’ future health critics of the technology are arguing that it will increase the abortion rate, which is the discussion Saletan takes up:

It’s pretty rich to see pro-lifers wring their hands about this information while, at the same time, they campaign for ultrasound laws. As Emily Bazelon has pointed out,
you can’t be for information when it discourages abortions but against
information when it leads to abortions—not if your real purpose is, as
pro-lifers insist, simply to inform women.

Saletan admits that he is not advocating a restriction of prenatal genetic testing, but he makes the point that the information they provide is not perfect and their results, if "abnormal," may alter the way prospective parents think about the pregnancy:

This is the world we’re entering in prenatal testing. It’s a world
where you’ll know more and more about which diseases your baby might
get. Instead of thinking the baby is normal, you’ll know it’s abnormal.
And from talking to your doctor and looking up the associated diseases
on the Internet, you’ll get a very clear picture of how awful the
child’s life might be if it gets the disease. With that picture in the front of your mind, and the "abnormality" label in the back of your mind, your conceptual frame—and your default plan—can change. Genetically, something is definitely wrong with your baby. What are the chances it won’t get the disease? Can you live with yourself if you fail to prevent this, knowing what you now know?

While more information about the health of your pregnancy is a good thing, Saletan concludes with a warning that your right to that information comes with a responsibility "to choose wisely."  Though I’m confident you already understand that concept. 


Candidate for House of Representatives in Virgina Refused Employees Birth Control has a good writeup on Republican Keith Fimian who is running against Democrat Gerry Connolly in Virginia’s 11th district. A heath care plan for employees of Fimian’s company made available on Virginia blogs shows that Fimian refused to cover contraceptives for his employees under his company’s heath care plan.  Fimian is widely documented as being anti-choice and anti-contraception and is even a member of an anti-birth control group, Legatus. Looks like another foot soldier in the War on Contraception.  Click on over to Blog For Choice for video of Connolly’s latest television ad aimed at informing women of Fimian’s extreme anti-contraception stance.