Even while upholding the Partial-Birth Abortion Ban Act, the U.S. Supreme Court conceded that Congress did not know what it was talking about when it passed the law. Congress asserted, for example, that no medical school taught the abortion method banned by the act, known as "intact D&E" (dilation and evacuation), when in fact many did.
Congress also claimed "there is no credible evidence that partial-birth abortions are safe or are safer than other abortion procedures," ignoring statements to the contrary from many physicians and several professional organizations, including the American College of Obstetricians and Gynecologists. The bill asserted a nonexistent "medical, moral, and ethical consensus" that intact D&E "is a gruesome and inhumane procedure that is never medically necessary and should be prohibited."
Yet Justice Anthony Kennedy concluded in his majority opinion that it was perfectly appropriate for Congress to take sides in the debate about the pros and cons of intact D&E, partly because the federal government "has an interest in protecting the integrity and ethics of the medical profession." To protect the integrity of the medical profession, the Court has endorsed ill-informed, arbitrary interference in physicians’ decisions by legislators who have neither the expertise nor the constitutional authority to say how medicine should be practiced.
Intact D&E, which involves pulling most of a fetus out of the uterus before puncturing, emptying and crushing its skull, is undeniably gruesome; it is also inhumane, assuming a 12-to-24-week-old fetus can feel pain (a matter of much dispute). But it is no more gruesome or inhumane than a standard D&E, which involves dismembering the fetus inside the uterus and pulling it out piece by piece.
Supporters of the Partial-Birth Abortion Ban Act conceded that it "saves not a single fetus from destruction," as Justice Ruth Bader Ginsburg put it in her dissent. In fact, their defense of the law hinged on the argument that it would not impose "an undue burden on a woman’s right to abortion" because adequate alternatives are available.
As Douglas Johnson, legal director for the National Right to Life Committee, put it after the Court’s decision, "Anything goes inside the womb." But if a second-trimester fetus is a person with a right to life, that person’s location at the time of his death is morally irrelevant.
Anti-abortion activists have always argued that birth is an arbitrary dividing line. Now they’re disingenuously insisting that "partial birth" makes an important difference because they hope to build on the precedent of national abortion restrictions and undermine Roe v. Wade.
Similarly, the ban on intact D&E, which accounts for a tiny share of abortions, in itself will not have much impact on the practice of medicine. But it opens the door to a wide variety of laws through which members of Congress can substitute their medical judgment for that of physicians throughout the country.
Medicine advances largely as a result of disputes about the hazards and benefits of different treatments that are resolved over time by clinical experience and research. If Congress decides to resolve these arguments by legislative fiat instead — dictating, say, that bariatric surgery is an unacceptably dangerous treatment for obesity, or that radiation is better than chemotherapy for breast cancer — it will short-circuit this process, replacing science with politics.
Such meddling is unconstitutional as well as unwise. The constitutional pretext for the Partial-Birth Abortion Ban Act, as with so much else that Congress does, is the authority to regulate interstate commerce. But if an abortion qualifies as interstate commerce, it’s hard to see how anything is beyond the federal government’s purview.
"Whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court," Justice Clarence Thomas noted in his concurring opinion. Instead of discussing the right to abortion, the Court should have been questioning Congress’ authority to regulate the practice of medicine, which is equally hard to find in the Constitution.