Dahlia Lithwick, on AG Gonzales' amazing imploding testimony before the judiciary committee:
One of the key issues in the early battles over unitary executive theory was the president's firing power. In its first incarnations, the notion of a unitary executive shored up the president's claim that he was entitled to fire executive officials—including the independent counsel and agency heads—as the mood took him.
If you watch the Gonzales hearing through this prism (and in this White House, even the bathroom windows look out through that prism), they were a triumph. For six impressive hours, the attorney general embodied the core principles that he is not beholden to Congress, that the Senate has no authority over him, and that he was only there as a favor to them in their funny little fact-finding mission.
Ellen Goodman writing last week in the immediate aftershock of Gonzales v. Carhart:
May I remind you what else was happening on the very day in 2003 when Congress passed the partial-birth abortion ban? In Florida, the Legislature passed a law that gave politicians the power to override Terri Schiavo's wishes and have her feeding tube reinserted.
Up and down the East Coast, under two Bush administrations -- George and Jeb -- politicians were playing doctor and God and patient, trumping both medical opinion and individual rights.
May I also remind you of the day President Bush signed the partial-birth abortion ban into law? The photo op had him surrounded by an all-male chorus line of legislators. These men were proudly governing something they never had: a womb.
Goodman today, on the court's disturbingly paternalistic turn to the right:
There was a small relic hidden in the Supreme Court's recent decision upholding the ban on so-called partial-birth abortions. For the first time, Justice Anthony Kennedy justified banning an abortion procedure not only to protect the fetus but to protect the woman.
"While we find no reliable data to measure the phenomenon," he admitted, "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained."
Reliable data or not, the "regrets" of these women became another reason to ban a procedure for all women. The state could protect her, the justice implied, from her own ill-informed, misguided decision.
Lynn Paltrow, chiming in:
The Court also made clear that when it comes to women's health, Congress need not legislate based on scientific or medical evidence. The leading medical experts and the lower federal courts have found that the now-banned procedure is the safest option for some women, and that it is significantly safer for these women than other abortion techniques. And yet, the Supreme Court decision acknowledges, Congress ignored these factual conclusions. Yesterday's decision marks a radical departure from previous Supreme Court abortion decisions that required law-makers to legislate based on facts not politics.
Indeed, the ruling effectively reverses more than 30 years of precedent requiring that laws regulating abortion ensure protection not only of the woman's life, but also her health. In the majority opinion, Kennedy makes clear that the most critical reason for upholding the law is to express the government's interest in the value of fetal life regardless of what that may mean for pregnant women.
Sarah Blustain, on South Dakota's informed consent law (currently under review in the 8th Circuit; companion piece to the voter-overturned draconian abortion law) and its implications for the concept of informed consent nationwide:
The first bit of advice the law would compel doctors to give, about the abortion terminating the life of a human being, rests on the notion that a woman seeking an abortion doesn't actually understand what being pregnant means...
The second bit of information that abortion doctors would be required to tell a woman seeking an abortion is that she has a "right" to continue her pregnancy. The South Dakota law, as well as the Mary Doe and Acuna cases, assumes that women considering abortions are generally so coerced by outside forces and by their own "crisis thinking" that they need the state to step in to protect them...
This line of thinking makes clear that women are too ignorant to realize that they are carrying some sort of nascent life in them, and too weak to possibly decide for themselves whether to have an abortion. Even worse, drafters of the South Dakota law do not think women are competent to state whether they have absorbed all of this helpful state information properly: The law would require the doctor to certify, in writing, that he "believes she [the pregnant woman] understands the information imparted."
Alice Cherbonnier supplies a delightfully high-snark rejoinder to South Dakota:
The real problem with this South Dakota law is that its pre-abortion informed consent requirements are incomplete. Those doctors should be required to provide more warnings during this last-minute disclosure session.
Let's have every South Dakota woman seeking an abortion acknowledge that she knows, if she bears a normal child, that the cost of raising that child to the age of 18, in today's dollars, will average $190,528—not counting the costs of her prenatal medical care and delivery, and postnatal follow-up care.
She should be informed, if she is to continue the pregnancy, of exactly how much financial support she can realistically expect from anti-abortion advocates and their organizations, and from government sources like Medicaid and social services (and be told how long she can expect those sources of aid will continue).
She will be asked to provide information about her sources of family support, if any. She will be required to affirm that she knows she may be an outcast of her family if her pregnancy goes forward.
Let's also make sure that the woman is informed of the potentially horrible effects on the fetus if she has been taking mood-altering drugs or medications while pregnant, and describe to her in detail the medical and behavioral problems that could afflict a newborn whose mother is a drug addict or alcoholic.
By leaving out these other important factors a woman needs to consider in deciding to have an abortion, South Dakota's legislators have tipped their hand, revealing that this law is based on a particular religious viewpoint.
That should do for now.
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