Since the April decision by the US Supreme Court to establish the Federal Abortion Ban on late term procedures, a great deal has been said here on Rewire and elsewhere about it as a loss for women’s health, the politics of its language and the reaction of the medical community.

Recently, on the opinion pages of the New York Times, we are seeing a debate about the implications of the ban may have for doctors and their patients. The debate pivots on a question about whether the ban actually prohibits doctors from performing the safest medical procedures for their patients.

From a piece by David Garrow:

Critics have suggested that the ruling vitiates the complete protection of women’s health that the Supreme Court had previously recognized. But though Justice Kennedy’s opinion certainly weakens the extent of that protection, it also quotes a unanimous 2006 Supreme Court ruling to state that the new ban would be unconstitutional “if it subjected women to significant health risks…Pro-choice doctors — and their lawyers — must have the courage to take Justice Kennedy at his word and read this decision’s explicit approval of all abortion procedures save one in a manner that will most expansively continue to protect women’s reproductive rights. The Carhart ruling is undeniably harmful, but the extent of the damage it will do to American women will be determined more by the fortitude of their doctors than by the words of Justice Kennedy.

Judith Warner is critical of such an analysis. She examines the implication of Kennedy’s opinion and the term “intent.” She writes,

You see, as it turns out, the Supreme Court didn’t just outlaw “partial-birth” abortions (known in the medical community as “intact dilation and extraction” or D & X,) when it upheld Congress’s ban. It criminalized any second trimester abortion that begins with a live fetus and where “the fetal head or the fetal trunk past the navel is outside the body of the mother.” The big problem with this, doctors say, is that, due to the unpredictability of how women’s bodies react to medical procedures, when you set out to do a legal second trimester abortion, something looking very much like a now-illegal abortion can occur. Once you dilate the cervix — something that must be done sufficiently in order to avoid tears, punctures and infection — a fetus can start to slip out. And if this happens, any witness — a family member, a nurse, anyone in the near vicinity with an ax to grind against a certain physician — can report that the ban has been breached. Bringing on stiff fines, jail time and possible civil lawsuits.

Justice Anthony Kennedy, writing for the court’s majority, asserted that prosecution for accidental partial births won’t occur; there has to be “intent” for there to be a crime. But as doctors now understand it, intent could be inferred by the degree of dilation they induce in their patients. What, then, do they do? Dilate the cervix sufficiently and risk prosecution, or dilate less and risk the woman’s health? And if they dilate fully, how do they prove it wasn’t their intent to deliver an intact fetus?

Garrow’s view seems unfortunately optimistic in the face of the extraordinary risk he asks doctors to face. Warner effectively explains why it is naïve to think that the legislative vagueness can be overcome by doctors’ choices. She illuminates the factors the doctors must take into account. Per this analysis, the ban is indeed tantamount to binding the doctors hands themselves. In the climate of fear and grave disregard for women’s health under the Bush Administration, Garrow’s position is clearly untenable.

It is true that doctors’ choices can indeed render the ban harmless. Garrow can certainly deny that the ban will prevent all doctors from compromising women’s health. But for those doctors, and I imagine there will be many, who do not choose to take the risk, the ban forces them to ignore their judgment about what is best for their patients. In such a nuanced debate, the crux is easy to miss: it is a mistake to read Kennedy’s position on intent as anything but a dismissal of women’s health. When health and safety are not built into the legislation itself, the law has failed. This, unfortunately, is undeniable.