Ruth Marcus laughs a little at Justice Kennedy's appalling, patronizing opinion on a rare abortion procedure. Then she hits him hard.
...Most chilling, was the court's willingness to subordinate the health of individual women, and the individual judgment of physicians, to the moral whims of the majority.
The partial-birth procedure is used in a tiny fraction of abortions. But the American College of Obstetricians and Gynecologists, which represents 90 percent of the country's board-certified OB-GYNs, told the court that the partial-birth procedure could be especially useful for some women, especially those with serious illnesses such as heart disease, bleeding disorders and weakened immune systems.
The advantages of the procedure, including lower risk of perforating the uterus or leaving fetal tissue behind, and shorter time under anesthesia, could avert consequences such as "massive hemorrhaging, serious infection, and subsequent infertility."
The court ignored that, as it did the similar conclusions of the three trial courts that heard evidence about the procedure. Instead, it announced that the law could stand because "medical uncertainty persists," and because those challenging the restriction had not shown that it would be unconstitutional in "a large fraction of relevant cases."
But as Justice Ruth Bader Ginsburg noted in her dissent, the point of a health exception is precisely for exceptional cases. Indeed, Kennedy seems to be as weak at math as he is at science.
"There is . . . no fraction," Ginsburg patiently explained, "because the numerator and denominator are the same: The health exception reaches only those cases where a woman's health is at risk."
