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JEFF JACOBY

Gay ruling echoes Roe v. Wade

A HIGH COURT yanks a controversial social issue out of the democratic realm of politics and debate. Instead of leaving the matter for voters and legislators to wrestle with, the justices unilaterally impose a revolutionary legal change. Many people welcome the ruling -- but many more don't.

The same-sex marriage decision by the Massachusetts Supreme Judicial Court last week? Yes -- but also the US Supreme Court's 1973 abortion decision in Roe v. Wade.

None of us can say where the marriage debate will be 30 years from now. But if Roe and its aftermath are any indication, we are in for a long and contentious fight. And even those of us who believe the Massachusetts court's radical imposition will have dire unintended consequences may come to find, down the road, that our forebodings didn't go nearly far enough.

Which brings me to partial-birth abortion.

Earlier this month, President Bush signed into law a prohibition on this singularly gruesome form of abortion. If ever a piece of legislation was mainstream, it was the partial-birth abortion ban. The bill was approved by large majorities -- 281-142 in the House of Representatives, 64-34 in the Senate. Among those voting "aye" were more than a few liberal Democrats -- Senators Joseph Biden and Tom Daschle, for example, and Representatives Patrick Kennedy, Marcy Kaptur, and John Dingell.

The late Senator Daniel Patrick Moynihan, a Democratic lion, once called partial-birth abortion "as close to infanticide as anything I have come upon." Most Americans agree. Gallup reported on Nov. 6 that 68 percent of the public thinks it should be illegal. Even among respondents describing themselves as "prochoice," 50 percent support the ban (vs. 42 percent who don't).

Many physicians backed the bill, too. In a survey reported in Medical Economics last fall, 44 percent of physicians favored making partial-birth abortion illegal (vs. 27 percent who didn't and 28 percent who weren't sure). Of MDs most directly involved with pregnancy and childbirth -- obstetrician/gynecologists -- 57 percent wanted a ban.

And no wonder. As the new law declares in its detailed findings of fact, "partial-birth abortion -- an abortion in which a physician delivers an unborn child's body until only the head remains inside the womb, punctures the back of the child's skull with a sharp instrument, and sucks the child's brains out before completing delivery of the dead infant -- is a gruesome and inhumane procedure that is never medically necessary." Close to infanticide indeed.

Yet to hear the abortion lobby, you would think the new law marks the end of women's liberty in America. "Any shred of doubt that this is the most antichoice president this country has ever had has been convincingly erased," fumed Kate Michelman of the National Abortion Rights Action League. Kim Gandy, president of the National Organization for Women, was outraged by "this travesty -- the theft of our reproductive freedom and our consitutional rights, and this administration's complete disregard for the welfare of women."

The abortion lobby swears up and down that partial-birth abortion is performed only in medical emergencies and only a few hundred times a year and that banning it would be an attack on some of the nation's most vulnerable women. But as far back as 1997, Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers, confessed the truth: "They're primarily done on healthy women and healthy fetuses," he told the American Medical Association newspaper.

The few journalists who investigated the abortion advocates' claims learned the same thing. David Brown, a reporter for The Washington Post and an MD himself, found "that the majority of these abortions are performed on normal fetuses" and that "in most cases where the procedure is used, the physical health of the woman . . . is not in jeopardy." Ruth Padawer of the Bergen Record exploded the claim that partial-birth abortions occur at most only a few hundred times a year. In just one New Jersey clinic, she wrote, 1,500 such abortions are performed annually. "Most are for elective, not medical reasons," one doctor told her. "People who didn't realize, or didn't care, how far along they were."

No one would have predicted, back when Roe was decided, that by 2003, one out of every four American pregnancies would end in abortion -- 1.4 million of them a year. No one could have imagined that abortion-rights advocates would become so fanatic that they would hotly defend even something as grisly and shocking as partial-birth abortion. No one dreamed that abortion politics would still be roiling the political waters 30 years later.

And if this is what the abortion debate -- which the Supreme Court thought it had settled with Roe -- has turned into, what lies in store for the marriage debate?

Jeff Jacoby's e-mail address is jacoby@globe.com.

Ross Ozer and his partner, Scott Gortikov Ross Ozer (left) and his partner, Scott Gortikov, took their 18-month-old son, Sam Ozer-Gortikov, to a celebration of the court ruling at the Old South Meeting House. Gortikov proposed marriage to Ozer after hearing of the decision. (Globe Staff Photo / Matthew J. Lee)
Text of the decision
Gay population
The 2000 Census estimated there were about 19,000 gay couples in Mass., and about 659,000 nationwide, or less than 1 percent of households. Provincetown is the community in Mass. with the highest rate of gay partners, about 15 percent of households.
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