It should have been pretty clear then, but they were fixed on the notion of keeping the races separate. With that uppermost in their minds, they disregarded the idea that barring association was itself an attack on a privilege (WHICH IT WAS!@!@!) and instead adopted the notion that separating the races was okay IF it was being done equally to all and all gained or lost equally as a result. In other words, if you separate blacks and whites, but treat them equally, then they can't claim the loss of a privilege. Justice Brown: "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."

Of course, experience tells us it doesn't really work that way.

In a similar vein, the current court is wrong, and for a similar reason: bias.

Now, let's begin by clarifying what we're talking about. Of 848 thousand abortions reported to the CDC in 2003, 1.4% occurred at over 21 weeks, that primarily being the chunk you're worried about. Let's be very, very clear about that chunk: if there are any elective abortions in that lot, there's a doctor who's a candidate for losing his license at the very least in almost any state without need of any fancy new Federal laws. As far as I know, most or possibly all states have some sort of restriction on late-term abortions.

So: it's the second trimester. The fetus is almost certainly nonviable - either by simple age (less than 28 weeks) or because the medical conditions prompting the decision at this late stage also involve some fairly serious impairments of fetal development. Most existing laws won't permit elective abortion at this point, so it's either something seriously medical or you've already got the law you need to put that doctor away. And now the Fed in its infinite wisdom steps in and says, "Medical, shmedical. You can't do it."

The law in question is deeply flawed, some of its "findings" flatly wrong, and its conclusion therefore in serious doubt. It includes no health exception - indeed it argued, based on those flatly wrong findings, that the procedure was never necessary for a woman's health and was unsound and unsafe. There is a life-safety exception; you can do this if you can show the woman would otherwise die.

(To which I would note that weighing life-and-death decisions with a prison sentence hanging over your head is not a recipe for a clear-headed and objective medical decision. Err a bit too far on the side of safety - or for that matter let someone else thinks you erred too far even if you yourself were convinced otherwise, and a prosecution could develop over a difference in medical judgment regarding just how much risk is or is not acceptable. That's not a circumstance that puts the welfare of the patient first in a physician's mind.)

The respondents...

(Clarification: in Gonzales v Carhart, A.G. Alberto Gonzales is the petitioner, asking the SC to overturn by a lower court's ruling against the law in question. Dr. LeRoy Carhart and three other physicians are the respondents, challenging his petition.)

...argued among other things that the act was too vague, that in the nature of medicine, a physician could start off performing a legal procedure and find himself inadvertently forced into unlawful terrain. Woirse, they pointed to arguments by government officials indicating a willingness to interpret the law as expansively as possible, possibly entangling physicians performing other procedures.

The respondents went on to outline examples of medical conditions where a health exception is warranted, hydrocephalus being one example they gave that anyone could understand. The head swells with fluid, damaging or destroying the brain while in some cases rendering the fetus too large for birth passage. The advantage in such a situation of evacuating the brain case, thereby shrinking the head before completing extraction, should be obvious.

The court's response: a health exception is too burdensome. The State has the right to make the laws, and people need to challenge it on a case-by-case basis if they believe it could risk a woman's health - this even though the court admitted that the respondents had made their case about the inaccurate information which formed the basis of the law's lack of a health exception.

In essence, the assumption of medical competence has been taken away from the physician. The patient must go to court at their own expense to prove in each individual case that there is a basis for a health exception, this at a time when the window of action is short, when delay could end up meaning either killing a by-that-time viable fetus to protect the mother or allowing injury or death to the mother to rescue the now-viable fetus - assuming of course the mother doesn't come to harm while waiting for the wheels of justice to turn.

This is the bias I'm referring to. The court is biased in favor of the State: they make make law without being burdened by a health exception. The court is biased against the mother - she must prove she's at risk to receive the procedure without her physician risking legal consequence. The court is biased against the physician: his medical judgment is not sufficient, but must be weighed and assessed by a third party (one who, mind you, is trained in law, not medicine). In essence, the court has said, "We don't trust you to make these decisions the way we think they should be made, so we're going to make you come to us whenever you want to make them."

And, this bias is in my opinion in the service of a deeper bias, one toward a particular religious view of the fetus. That argument is harder to make, admittedly. I base it on some of the wording in the body of the ruling itself, the way the opinion refers to the fetus and the questioned act. It's subtle, but its inescapable when you consider that, at a time when a conservative State has made no secret of its intent to eliminate abortion and has put forth a flawed law based on false premises, the Court has responded not by sending the law back for much-needed correction but by removing the need for any premises and shifting the burden to the individual.

Primary sources:

The "Partial-Birth Abortion Ban Act of 2003":
http://news.findlaw.com/hdocs/docs/abortion/2003s3.html

Gonzales v. Carhart, opinion of the court
http://www.supremecourtus.gov/opinions/06pdf/05-380.pdf

Petitioner's brief
http://www.abanet.org/publiced/preview/briefs/pdfs/06-07/05-380_Petitioner.pdf