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RE: THE SUPREMES. I want to point out Yale law professor Jack Balkin's reading of yesterday's Court decision, which is fairly illuminative:
[T]he Court emphasizes Casey�s holding that states have legitimate interests in protecting potential life throughout the pregnancy. The Court uses this interest to justify the ban on intact D&E. But there is a strange lack of fit between the interest asserted and the means used to further it. Banning intact D&E does not save a single fetus� life. Rather, it requires doctors to use standard (non-intact) forms of D&E or, as the Court at one point suggests, to inject the fetus with a chemical that kills it and then to remove the fetus intact. The actual interest the Court is asserting is not the interest in protecting potential life but rather an interest in not having the life of fetuses ended in ways that the legislature regards as particularly gruesome. That might be a legitimate interest (pace Lawrence v. Texas), but it is not the interest in potential life recognized in Casey.A couple quick things here. I didn't have a particularly full understanding of the argument until Ann finally sat me down (well, we were walking, but still) and explained it to me. The Partial Birth Abortion Act is in the rich naming tradition of The Healthy Forests Act, in that the legislation's title suggests a rather different purpose. I'd assumed it banned late-term abortions, an assumption that seemed backed by the arguments over maternal health. I was wrong. It actually bans intact Dilation and Extraction, a procedure conducted as early as the 13th week, depending on the condition of the fetus and the particular circumstances of the mother. So what the legislation actually does is outlaw a type of abortive procedure, not a timeframe or circumstance. So the Court, in its ruling, essentially said you can break a fetus up into lot of little pieces and extract it, or kill it first and then extract it whole. It has nothing, however, to do with the viability of the fetus or the timing of the procedure. It's simply an attempt to chip away at abortion by arbitrarily outlawing a specific method.--Ezra Klein
