On April 18, 2007, the United States Supreme Court issued its opinion in what is sure to be considered the most important decision regarding abortion since the infamous Roe v. Wade. In Gonzales v. Carhart, the Supreme Court upheld Congress' ban of the procedure widely known as "partial-birth abortion." While the decision is surely a considerable step in the right direction, the very existence of so much legal wrangling over the gruesome and barbaric procedure is disheartening, and the opinion is sure to leave Americans who believe abortion to be morally wrong with a feeling of overwhelming frustration.
[Warning: A review of this case requires some detailed discussion of the type of abortion procedure banned by Congress. The procedure, and thus the following analysis, is indelicate and deeply disturbing.]
Congress passed the Partial-Birth Abortion Ban Act of 2003 (the "Act") to outlaw just one particular type of late-stage abortion, known in the medical community as "intact dilation and extraction" or "intact D&E." Intact D&E is a variation of the more standard D&E, whereby the doctor, after dilating the woman's cervix, uses forceps to grip parts of the fetus and tear the tiny body apart, removing it from the mother in multiple pieces. With intact D&E, the doctor extracts the fetus from the womb by delivering his or her entire body outside the mother until the fetus' head lodges in the cervix. At this point, the doctor forces the scissors into the base of the baby's skull, enlarges the opening, and introduces a catheter to suck out the contents of the skull. The baby's collapsed head is then delivered outside of the mother's body, completing the abortion procedure.
The Supreme Court's opinion in the case includes the following excerpt, the testimony of a nurse who described intact D&E before the Senate Judiciary Committee:
Dr. Haskell went in with forceps and grabbed the baby's legs and pulled them down into the birth canal. Then he delivered the baby's body and the arms-everything but the head. The doctor kept the head right inside the uterus...
The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.
The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp...
He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.1
In order to avoid the fate of the State of Nebraska's partial-birth abortion ban statute, which was struck down by the Supreme Court in 2000, Congress recorded factual findings to document its reasons for passing the Act. One of these findings was that "[a] moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion . . . is a gruesome and inhumane procedure that is never medically necessary and should be prohibited."2 Congress further stated: "Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life."3
In addition to producing a record replete with factual findings, Congress was careful to cure a legal defect that the Supreme Court had found in the wording of the Nebraska statute. While the Nebraska law imposed liability upon physicians who delivered "a substantial portion" of a living unborn child for the purpose of killing him or her, the federal statute specified that only doctors who deliver the baby past certain anatomical landmarks4 are subject to criminal penalties.
The parties who challenged the federal Act raised three major arguments. First, they claimed that the law was unconstitutionally vague because a doctor may not know whether or not criminal liability would result when he or she performed a late-term abortion. Second, challengers argued that the law placed an undue burden on a woman's right to choose an abortion during the second trimester by restricting too many types of abortion. Finally, challengers claimed that the Act was unconstitutional and inconsistent with the Supreme Court's precedents because it failed to provide an exception to protect the health of the mother.
Writing for the majority of the Court, Justice Kennedy rejected all of these arguments and upheld the federal law. Before addressing each of the challengers' contentions, Justice Kennedy was careful to pay homage to the Court's precedents, which set forth the legal framework for the decision. According to the principles set forth in the relevant precedents, a State may not prohibit a woman from having an abortion before viability.5 An undue burden upon the woman's right to an abortion will be found if a regulation's "purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."6 However, regulations that merely "express profound respect for the life of the unborn" are permitted.7
The Court found that the statute was not unconstitutionally vague because its use of specific anatomical landmarks to define the banned procedure provided adequate notice to physicians of the precise type of abortion that was proscribed.8 Moreover, the law's employment of a scienter requirement mitigated any potential concerns about vagueness.9 Only a doctor who intentionally delivers the baby to a specified anatomical landmark for the purpose of performing an abortion will be liable under the statute.
Citing the fact that many other types of abortions remain available to women, the Court rejected the challengers' claim that the Act placed an undue burden on a woman's right to abort her baby prior to viability.10 Specifically, Justice Kennedy pointed out that the standard D&E abortion, which "requires the removal of fetal parts that are ripped from the fetus as they are pulled through the cervix," remains legal under the Act.11
In what is sure to be the most hotly debated portion of the opinion, the Supreme Court rejected the challengers' argument that the law constituted an undue burden on a woman's right to an abortion because it does not contain an exception to allow the banned procedure where the doctor believes said procedure is necessary to preserve the mother's health. While the Court affirmed the principle that an abortion regulation is unconstitutional where it subjects women to "significant health risks," the majority of the Court ultimately found that it was proper to defer to congressional findings where there exists documented medical disagreement as to whether or not the prohibition would ever impose significant health risks upon women.12 The opinion reaffirms both the wide discretion of the legislative branch to legislate in areas of scientific and medical uncertainty and the importance of the State's interest in "promoting respect for human life at all stages in the pregnancy."13
Two other Justices issued opinions in this case. Justice Thomas wrote a concurring opinion, with which Justice Scalia joined. Justice Thomas stated simply that while the majority opinion represents an accurate application of current abortion jurisprudence, said jurisprudence, including Roe v. Wade, has no basis in the Constitution.14
Justice Ginsburg authored a scathing dissent, which was joined by Justices Stevens, Souter and Breyer. The heart of their dissent is their objection to any abortion regulation that does not include a health exception. The dissent points out that in striking down the Nebraska partial-birth abortion ban, the Court had expressly held that a statute banning intact D&E was unconstitutional in part because it lacked a health exception.15
Underlying this specific concern about the lack of a health exception, it is apparent that these four Justices share a more systemic objection to the majority's opinion. The Court's holding understandably evokes a concern among Roe v. Wade proponents that the foundation of abortion rights is beginning to crack and will ultimately crumble as pro-lifers gain a substantial foothold.
But the real foothold here is not the narrow holding that the Partial-Birth Abortion Ban Act is constitutional. Rather, the real prize is the seeming shift in the balance of interests involved in abortion cases. Again and again, the majority reiterates the importance of the State's interest in "promoting respect for human life." A reading of the majority opinion conveys, perhaps for the first time in the Supreme Court's abortion jurisprudence, the impression that this interest in the life of the unborn (however nebulously described) is somewhere on the same playing field as the woman's "right" to have an abortion. In Justice Ginsburg's words, the Act "surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman's reproductive choices."16
Evidence of this ideological shift is also found in the wording of the opinion, as Justice Ginsburg points out in her dissent.
The Court's hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label "abortion doctor." A fetus is described as an "unborn child," and as a "baby;" second-trimester, previability abortions are referred to as "late-term;" and the reasoned medical judgments of highly trained doctors are dismissed as "preferences" motivated by "mere convenience." Instead of the heightened scrutiny we have previously applied, the Court determines that a "rational" ground is enough to uphold the Act. And, most troubling, Casey's principles, confirming the continuing vitality of "the essential holding of Roe," are merely "assumed" for the moment, rather than "retained" or "reaffirmed."17
The monumental decision in Gonzales v. Carhart is surely a victory for pro-lifers. And yet, those who mourn the destruction of human life in the womb have little cause for celebration.
As both the majority opinion and the dissent recognize, the Partial-Birth Abortion Ban is only able to withstand constitutional scrutiny because it leaves available equally murderous and horrific abortion procedures, including the "standard" D&E. As Justice Ginsburg explains in her dissent, "The law saves not a single fetus from destruction, for it targets only a method of performing abortion."18
How can it be that the Constitution of our great nation sanctions the dismemberment of a tiny baby while it is inside the mother's body but not the suctioning of its brain matter once most of its body is outside the mother? The difference between the two procedures is mere inches of distance and a few layers of flesh. Let's face it: the difference is whether others in the room can see the victim as the murder occurs.
The battle for the unborn exemplifies the tragedy that can result from the principle of stare decisis when the Supreme Court just gets it wrong. The hypocrisy of banning only the intact D&E is the inevitable result of the mounds of "constitutional requirements" heaped upon lawmakers by the Supreme Court's extra-constitutional abortion jurisprudence. As Justices Thomas and Scalia continue to insist, the Constitution simply does not contain a right to have an abortion. Thus, the judicial branch, having created this right from whole cloth, is left to expound and interpret it. And if the Court creates a constitutional right of its own accord, how can such a right, once breathed into existence, be attacked? Opponents are left to argue that other interests outweigh this "right" to which the Court assigns whatever measure of value it sees fit.
Roe v. Wade and its progeny have left lawmakers to take up the dirty job of ensuring that women are left with plenty of options for destroying their unborn children, even as these legislators are careful to document plenty of findings regarding their respect for the value of all human life. They cannot be blamed for this hypocrisy. The Court has forced their hands.
And so our society has successfully strained out a gnat, only to swallow a camel. The battle for the unborn must continue, using the promising aspects of the majority opinion in Gonzales v. Carhart as new ammunition to fire at the shameful pile of artificial "rights" and legal balancing tests that serve as the sole epitaphs for a generation of children.
Rita Dunaway is an affiliate attorney with The Rutherford Institute.
1 H. R. Rep. No. 108-58 p. 3 (2003).
3 Congressional Findings (14)(N), in notes following 18 U. S. C. Â§ 1531 (2000 ed., Supp. IV), p. 769.
4 The Act's definition of partial-birth abortion requires the fetus to be delivered "until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother." 18 U. S. C. Â§ 1531 (2000 ed., Supp. IV).
5 Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 879 (1992) (plurality opinion).
6 Id. at 878.
7 Id. at 877.
8 Gonzales, 2007 U.S. LEXIS 4338, *44-46 (2007).
9 Id. at *45-46.
10 Id. at *47-48.
11 Id. at *51.
12 Id. at *67-70.
13 Id. at *69.
14 Id. at *79 (Thomas, concurring).
15 Id. at *88 (Ginsburg, dissenting) (citing Stenberg v. Carhart, 530 U.S. at 930, 937).
16 Id. at *83 (Ginsburg, dissenting).
17 Id. at *109 (Ginsburg, dissenting).
18 Id. at *100 (Ginsburg, dissenting).