The Justices vs Women, Doctors, and Liberty

         Wendy Kaminer is quite right that one of the most prominent features of the Supreme Court decision in Gonzales v. Carhart, upholding, for the first time, a ban on an abortion procedure that does not make an exception for the health of the woman, is the Court’s arrogant assumption that it need not credit the medical judgments of experts in the field. Instead, the majority of the justices cynically lean on either quacks or the justices’ (and the Congress’s) own sense of good medical practice.

          This is not the first time, alas, that the court has allowed Congress or federal bureaucrats and law enforcement agents to intrude into an area that should be left to the medical profession. In a 2005 decision, the court ruled that the federal government can still punish possession of marijuana in the eleven states that have eliminated sanctions for its use for medicinal purposes, thereby effectively over-riding professional medical opinion in a large part of the country.

         And for most of the 20th century and continuing today, the Court has allowed overzealous anti-drug bureaucrats of the Drug Enforcement Agency to harass and prosecute physicians who treat patients suffering from chronic, debilitating pain.” In U.S. v. Moore (1975), the court reaffirmed the federal government’s power to criminally punish doctors who administer painkilling opiates, ruling that physicians “can be prosecuted when their activities fall outside the usual course of professional practice.” The vagueness of this wording gave the drug warriors considerable wiggle room and unsurprisingly led to a series of high-profile cases in which doctors were treated no differently than street corner drug dealers because they administered pain-killing narcotics in quantities and under circumstances that contradicted the “medical judgment” of federal drug agents and bureaucrats. A chilling effect has ensued, in which doctors frequently underprescribe painkilling medicine out of fear of losing their livelihoods and reputations.

           And so it is not so surprising to see the justices kick around the medical profession (and its patients) as if they, or Congress, or the President, somehow know better. But what is quite dismaying is to see a majority of the justices take baby steps (you’ll pardon the double entendre) to begin a return to a darker age, when the state was able to dictate when a pregnant woman must continue the process and produce a baby for the state – a baby that the state will be shockingly indifferent to once it’s born. (As Rep. Barney Frank has acidly observed, the pro-life crowd consists largely of people who believe that life begins at conception but ends at birth.)

            It is also useful to note that in this case, the court arriving at such an unwise (and, it must be said, unconstitutional, no matter what five justices claim) result was dealing not with some state legislature’s attempt to restrict abortion within its own benighted boundaries, but with a congressional statute that will impose a uniform tyranny on women throughout the land. This is not one-fiftieth of a disaster for liberty, but a 100% disaster, crimping liberty from sea to shining sea.

            My former law partner (now federal judge) Nancy Gertner, who did a significant amount of important pro-choice litigation back in the 1970s and 80s, used to have a poster in her office that said: “If men could get pregnant, abortion would be a sacrament, not a crime.” Amen, brothers and sisters.