Phil Spector Court TV Informer Stupid Crimes & Misdemeanors Best Defense

Court TV Host: As the Supreme Court weighs a ban on so-called "partial birth abortions," join in the debate online with two long-time advocates on both sides of the abortion issue: James Bopp, general counsel to the National Right to Life Committee, and Elizabeth Cavendish, a consultant to pro-choice organizations and a former Vice President of NARAL. Thanks to both of our guests for joining us today.

Betsy Cavendish: Thanks for having me.

Jim Bopp: Nice to be on.

Court TV Host: By the way, if you'd like to read the arguments before the court yesterday, you can go to http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05-380.pdf  Or http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05-1382.pdf

Jim Bopp: 2 hours long.

Court TV Host: And you can also actually LISTEN to the arguments online...The Supreme Court made those available.

Jim Bopp: So take to bed tonight and have a medical dictionary with you.

Question from MajorGlory: What exactly is partial birth abortion?

Jim Bopp: It is defined in the federal law.

Betsy Cavendish: That's a political term not a medical one. People think it means dilation and extraction abortion, or D&X.

Jim Bopp: It is deliberately vaginally delivering a living fetus until the entire head is outside the woman's body.

Betsy Cavendish: The ban affects second trimester abortion and is broader than the one procedure depicted by opponents of it.

Jim Bopp: Or if feet first, the legs and trunk past the naval is outside the body of the mother, and then the doctor commits an overt act to kill the living baby, usually by piercing the base of the skull of the baby with a pointed object and sucking the brains out of the living baby and killing the child. The doctor usually is holding the trunk and legs of the baby in his hands when he does this. 11 U.S.C. 1531(b)(1) is the cite for the definition.

Betsy Cavendish: For many women, this is the safest way to end a pregnancy in the second trimester. ACOG, the American College of Obstetricians and Gynecologists, is opposed to the federal ban. It's not the only medical society opposed to it, too.

Question from DrChamp: In other words, partial birth abortion is murder: not political, but morally it becomes murder.

Question from Dusty: That's murder!

Jim Bopp: It is certainly intentionally killing a baby just inches from full delivery, usually with only the head still in the mother's body.

Betsy Cavendish: That goes a lot farther even than Congress thinks. If you use inflammatory language like murder, you equate women who have abortions with the worst criminals. We're also talking about second trimester. It wouldn't be being born at that time. Abortion is legal in the second trimester; it's not murder.

Jim Bopp: Obviously this is so close to killing a fully delivered child that even many pro-choice legislators have viewed this as infanticide at least. It really blurs that line.

Betsy Cavendish: After lengthy trials and extensive deliberation, all six federal courts to look at the ban found it unconstitutional.

Jim Bopp: Well Betsy, that is why we have a Supreme Court.

Betsy Cavendish: I'm glad the Court yesterday focused on the facts and stayed away from inflammatory charges like infanticide.

Question from greenacres: Didn't Justice Ginsburg point out yesterday that the issue isn't whether the fetus will or should be preserved by legislation, but whether Congress can ban a certain method of performing abortions?

Jim Bopp: Yes, I think that is the question.

Betsy Cavendish: Right. There's no question that whether the ban stays or falls, a woman could still legally get an abortion. The question is whether she can use the safest procedures or not. Congress hasn't tried to ban her from having an early labor induced or having a hysterectomy, for example. But there is a question about whether it's just one method being banned,.

Jim Bopp: And the AMA, etc. all agree that there are other appropriate available abortion procedures that do not involve killing children who are almost completely outside the mother's body.

Betsy Cavendish: The language Congress used was broad enough to encompass the most common second trimester procedure. Thus the ban constitutes an undue burden on a woman's right to choose.

Jim Bopp: That is so bogus, Betsy, that one cannot figure out what is banned.

Betsy Cavendish: Well, it wasn't bogus in 2000, when the Supreme Court found that Nebraska's similar ban covered D&E.

Jim Bopp: Different definition. Words do matter.

Betsy Cavendish: The law doesn't use the word "intact"; it still doesn't exclude D&E. The advocates yesterday pointed to several critical areas where the definition is still vague.

Jim Bopp: How could a fetus still be living if it is not intact? So living includes intactness.

Betsy Cavendish: And procedures intended to be used at the outset are not necessarily the ones used during the course of a medical procedure.

Jim Bopp: How many fetuses who are ripped apart are still alive?

Betsy Cavendish: During the procedure, the fetus could still be alive and not be intact.

Jim Bopp: Which is the other procedure that can be used D & E

Betsy Cavendish: The point is that doctors will need to have a lawyer at their side when they perform abortions. The public does not want Congress trying to practice medicine.

Jim Bopp: I am a lawyer because I was not smart enough to be a doctor, so I doubt it. he he

Betsy Cavendish: We saw that in the Schiavo case.

Jim Bopp: Let's stay on issue. You can explain it to them.

Betsy Cavendish: Same issue. Do people get to work with their own doctors to make health care decisions?

Jim Bopp: If they are not smart enough

Betsy Cavendish: Or does Congress get to step in and legislate the fine points of medicine?

Jim Bopp: And in their bed rooms, too, I bet.

Question from Q: JimBopp do you think that men, including the men on the Supreme Court, and yourself should have any right to even an opinion on what a woman chooses to do concerning having abortions?

Jim Bopp: Sure, we care about our children, too.

Betsy Cavendish: I agree, they can certainly have opinions. They just shouldn't try to legislate for all women in all circumstances.

Jim Bopp: And, for that matter, the women we love - so if a woman wants to kill a child, they should be exempt, from laws that men vote on. Really weird.

Betsy Cavendish: Not a child. But she can terminate her pregnancy.

Jim Bopp: What is in this pregnancy?

Betsy Cavendish: Her fetus. At least until the point of viability.We do respect people's bodies in this country.

Jim Bopp: The pregnancy is already terminated when the doctor kills the child.

Betsy Cavendish: We don't force people to be organ donors. We don't force women to continue pregnancies to term.

Jim Bopp: in a partial birth abortion, now there are two living bodies here, you would not have to kill the child if the child was not living.

Betsy Cavendish: I'm glad the Supreme Court stayed away from this political talk about killing children yesterday.

Jim Bopp: And if the child is just part of the woman's body like you say, thne separating the child would kill it.

Betsy Cavendish: The Court is basically considering the very important question of whether the law should continue to respect women's health.

Jim Bopp: Why does the doctor have to puncture the child's head and suck the brains out then?

Betsy Cavendish: Abortion rights jurisprudence has always put women's health as a top priority. Now, that principle is being challenged.

Jim Bopp: It is not the only interest here. The child has an interest also.

Betsy Cavendish: Women may need to undergo significant additional risks due to political interference.

Jim Bopp: As does our society in keeping a bright line between abortion and infanticide.

Betsy Cavendish: The state's interest in the continuation of potential life grows as the pregnancy proceeds. But before viability, the woman gets to choose whether to continue the pregnancy.

Jim Bopp: This baby is inches from full delivery.

Betsy Cavendish: Those inches are in the woman's body, and there would be no delivery without the induction. It's second trimester. Being in the woman's body does matter. Doctors should use procedures safest for the woman.

Jim Bopp: Is it ok then to suck the brains out of a fully-delivered second-trimester delivery - when the baby is on the table and delivered but not viable? On the table, alive, not viable.

Betsy Cavendish: If there has been a premature delivery, no, the doctor can't take an overt act like that.

Jim Bopp: Don't care?

Betsy Cavendish: The baby will die anyway.

Jim Bopp: So how many centimeters can remain in the woman's body to kill the child? How about an arm?

Betsy Cavendish: The big issue for women is not the rare case of the delivery of a pre-viable baby. The big issue for women is whether they or politicians decide.

Jim Bopp: So this is just politics to you? If only women voted on this, it would be banned

Betsy Cavendish: No, it's a deeply personal, moral issue, as well as a political one.

Jim Bopp: Women are more against abortion and PBA then men are.

Betsy Cavendish: Since the Stenberg case in 2000, we've learned that some of the top med schools teach D&X.

Jim Bopp: It is men who want abortion more than women.

Betsy Cavendish: Yale, Columbia, NYU, Cornell, Northwestern. This is an important medical technique that Congress shouldn't ban. Every time the issue of abortion procedures has gone directly to voters and voters have studied it, the public voted against the bans.

Betsy Cavendish: Washington State, Colorado, Maine -- voters didn't want procedure bans.

Jim Bopp: That is hilarious.

Betsy Cavendish: But true.

Question from Dusty: Doesn't it stand to reason that your point of using the method best for the mother, that a doctor is dealing with two human lives and should do what is the best procedure for BOTH of them?

Jim Bopp: Yes, both should be considered, at least when the baby is almost completely delivered.

Betsy Cavendish: If the woman wants to undergo additional risk by having an injection first, that's fine. She can decide what's best for the fetus too. But it's not for Congress to mandate she undergo additional risks.

Jim Bopp: The abortion right should not extend outside the womb.

Betsy Cavendish: It doesn't.

Jim Bopp: What about the baby? This is the problem here.

Betsy Cavendish: I'd rather see an agenda focused on children. Why don't we work hard to get all kids health care, good schools, quality day care.

Jim Bopp: If they survive the killing zone.

Betsy Cavendish: Stop all this fuss over which second trimester abortion methods are legal or not.

Question from moonunity837: How do the cases the Supreme Court is considering now differ from the partial birth abortion case the court ruled on a while back?

Jim Bopp: Different definition.

Betsy Cavendish: First, it's a federal ban. It would apply throughout the country. Second, it DOESN'T differ, in that both fail to protect women's health.

Jim Bopp: More robust record on the lack of health risks to the mother.

Betsy Cavendish: Third, Congress has made findings, some of which are flatly false. Now, in fact, there is more record of experience with the procedure. More doctors from leading medical schools use it and teach it. The definition has changed only slightly, not enough to address the Court's concern with overbreadth.

Jim Bopp: And it is true that the court must consider that this is a federal law. In terms of the definition, there is a huge difference.

Betsy Cavendish: So people in NY and California who thought the right to choose would be secure even if Roe is overturned had better worry if this ban goes into place.

Betsy Cavendish: Not a huge difference. The proponents of this ban intentionally left out key areas of specificity. They didn't want to leave in place the most common method.

Jim Bopp: Old one said "partially delivers vaginally."

Betsy Cavendish: Anyway, the Court will decide whether the overbreadth problem is cured.

Jim Bopp: While the new one requires the baby's body to be outside the mother's body at least partially, the feet and truck to the naval or the head.

Betsy Cavendish: But it should be concerned that Congress intentionally defied its ruling that women's health must be protected. Congress can't just "find" that this procedure is never medically necessary.

Betsy Cavendish: It can't just say the sun is the moon. The doctors testified throughout the country that this procedure minimizes risk to women from uterine perforations. From really catastrophic problems, problems that while rare, women should be entitled to avoid where possible.

Jim Bopp: A ton of doctor and medical groups agree that there are other appropriate and safe procedures that can be used .

Betsy Cavendish: Other procedures are by and large safe. But they can and sometimes do have worse problems for the woman than D&X.

Jim Bopp: This is so exaggerated that it is absurd.

Betsy Cavendish: And if the law can fairly be read to criminalize D&E, too, then the other procedures are MUCH less safe.

Jim Bopp: And it completely eliminates any consideration of the risks of PBA itself, and the interest in the child.

Betsy Cavendish: Lots of name calling at me today, Jim. The Court, fortunately, was much more respectful of the litigants.

Jim Bopp: Did not call you anything, called the argument exaggerated and absurd.

Betsy Cavendish: Let's hope they're as respectful of their own precedent.

Jim Bopp: A characterization of an argument is not a characterization of a person.

Court TV Host: Let me ask a question: Justice Breyer asked yesterday what would happen if the court ruled that the procedure could be used "only where appropriate medical opinion finds it necessary." He went on to say: "Now, if Congress is right, there will be no such case, so its no problem. But if Congress is wrong, then the doctor will be able to perform the procedure and Congress couldn't object." How would you two feel about that?

Betsy Cavendish: I think Cilla responded for the Center for Reproductive Rights that appropriate medical opinion does establish that D&X is appropriate. Studies have come in showing its safety.But it's bad medical policy for Congress to ossify one state of medicine. To say that a new procedure can't be used unless, say, there are randomized controls, which can't be done if there's a criminal ban, of course.

Jim Bopp: It cannot be left up to the subjective opinion of the aborting physician.

Betsy Cavendish: The physician must have a reasonable basis for making this medical judgment. But that can be based on experience.

Jim Bopp: I have deposed abortion doctors who claim that every single abortion is justified by their opinion that it is better for the woman.

Betsy Cavendish: For instance, if a D&E is done on someone with placenta previa, there's much more risk of bleeding. Or someone with a thin uterine wall.

Jim Bopp: I have always found this argument to be odd.

Betsy Cavendish: Or even if he or she finds that D&E is more likely to lead to tissue retention, infection, or perforations. Maybe you find it odd, because you deplore all abortions. But it is legal, so we need to figure out what is least risky for the woman.

Jim Bopp: Since the abortion lobby has claimed the D&E's are sooooo safe that they do not even have to be performed in a hospital.

Betsy Cavendish: They are small risks in terms of numbers, but when those events happen, they can be catastrophic.

Jim Bopp: So all D&E's should be in a hospital?

Betsy Cavendish: And high risk medical practices, like at the university centers now teaching D&X, have patients with difficult conditions. These patients would likely not be handled at a freestanding clinic. They would go to a hospital.

Jim Bopp: So all D&E's should be in a hospital? All! Is my question.

Betsy Cavendish: But for most women, D&E is safe. Surely the Court can recognize that there can be safe and safer.

Jim Bopp: How do you know in advance that you will puncture a uterus?

Betsy Cavendish: Almost all procedures and drugs carry risks. We're dealing with incremental risks.

Jim Bopp: During a D&E, how do you know ahead of time?

Betsy Cavendish: You can't know in advance about what abortions might lead to big problems, except when a woman has an underlying medical condition. Where she doesn't, if the doctor has a reasoned base for deciding D&X is still safer, that decision should stand, without Congressional interference. Legislatures have tried to ban procedures before, and have been rebuffed by the Court.

Jim Bopp: So if this complication is so rare that a D&E can be safely done in a clinic, then you are really exaggerating the risk here

Betsy Cavendish: I hope the Court will turn back this effort, too. I wish we could all spend more time and money and energy in preventing unwanted pregnancies and thus reducing the number of abortions. Instead, this issue is so sensational, and so violative of established law, it never goes away.

Jim Bopp: So safe that D&E's can be safely done in a clinic, not hospital, but so dangerous that we need to kill babies just inches from full delivery.

Question from JERRY: Hi Elizabeth: I support choice and will always support choice, but I am a moderate on this issue. I support parental notification and outlawing the partial birth abortion. Why can't there be a compromise on this issue?

Betsy Cavendish: The Supreme Court set forth a path for compromise in 2000. It said if a legislature provides for a health exception and limits its procedure ban to just D&X, the ban could stand. Congress didn't follow that path. In terms of parental notification, there are some states that have compromise legislation.

Betsy Cavendish: Those states provide for parental notice, but if the young woman finds she can't talk to her parents, the statute allows for another adult to be involved. Maybe that's the compromise.

Jim Bopp: I was actually shocked that the abortion rights groups embraced this procedure. Unless their agenda here is to expand the abortion right outside the mother's womb

Betsy Cavendish: No, Jim, the agenda isn't to expand the right to encompass the infanticide you keep talking about.

Jim Bopp: Like the adult boyfriend? Who impregnated the girl?

Betsy Cavendish: The groups were forced to oppose the ban because it's a vehicle for taking away constitutional protections for women's health and for eliminating second trimester abortion.

Jim Bopp: You also want him to be able to take her across state lines for an abortion.

Betsy Cavendish: Jim, that's silly about the boyfriend. No, so the girl can go to someone like a trusted aunt, elder sister.

Jim Bopp: Abort the evidence of his statutory rape.

Betsy Cavendish: Or perhaps an understanding clergyman.

Question from hammy: With the debate over abortions now lasting in excess of thirty years, do either of you think its time to resolve the issue, reach a compromise and move on? I suspect millions upon millions have been spent lobbying one way of the other instead of feeding and educating the future generations.

Betsy Cavendish: I think the most fruitful area for compromise is to unify the pro-life and pro-choice movements on a family planning agenda. One where people have information about and access to contraceptives.

Jim Bopp: The only way for an issue like this to reach some sort of equilibrium is for it to be worked out in the democratic process.

Betsy Cavendish: One where people get the best chance possible to avoid pregnancy.

Jim Bopp: The Supreme Court prevented that by inventing a constitutional right to abortion.

Betsy Cavendish: But I think the abortion controversy can't be wished away, even if we have more robust family planning policies.

Jim Bopp: That is why this issue is much more contentious in the USA.

Betsy Cavendish: The issue goes to core American values. Privacy, dignity, autonomy.

Jim Bopp: None of those words are in the Constitution.

Jim Bopp: Neither is abortion. So that is the heart of the problem.

Court TV Host: Thank you very much for being our guests today online.

Betsy Cavendish: Thank you.

Court TV Host: I hope you'll come back again... when we get the Court's decision.

Jim Bopp: Bye, thanks for the invite.

Betsy Cavendish: My thank you was to the host, not an agreement with Jim! But bye to you both!

Court TV Host: Thanks again!

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