July 15-21, 2007 Issue |
Posted 7/10/07 at 1:21 PM
Critics of the Supreme Court’s April 2007 decision Gonzales
v. Carhart (“Carhart II”) — the abortion industry, its lobbyists and friends on
Capitol Hill — are already exploiting the decision for fund-raising,
legislative, electoral and general scare-mongering purposes. Their efforts
involve playing fast and loose with the reasoning of the ruling — and with the
facts.
They accuse the court of overturning recent precedent,
“Carhart I” (Stenberg v. Carhart in 2000), being hypocritical (because “the ban
won’t stop a single abortion”), selling out women’s health and striking a
near-fatal blow to Roe v. Wade. None of this is true. Let’s look at some of
their distortions.
Did Carhart II overturn Carhart I?
In Carhart I, Nebraska abortion doctor Leroy Carhart
successfully challenged Nebraska’s ban on partial-birth abortion. In 2007, he
lost his challenge to the federal ban. Why the different result?
Although the federal law, Nebraska’s and those of about 29
other states all sought to ban partial-birth abortions, lawmakers used
different statutory language to do so.
Nebraska’s law defined partial-birth abortion as a procedure
in which the doctor delivers a “substantial portion of the fetus” before
committing an act that kills the fetus. In Carhart I, five justices found its
description so “vague” that it could also apply to dismemberment abortions, the
commonly-used mid-trimester abortion method. In dismemberment abortions, it
often happens that the child’s heart continues to beat after his leg or arm is
drawn into the birth canal and ripped from his trunk (by traction against the
cervix).
If both the partial-birth abortion and dismemberment
procedures were banned, the court reasoned, it would place “a substantial
obstacle in the path of a woman seeking an abortion of a nonviable fetus,”
creating an “undue burden” on a woman’s “right” to choose.
In response to the court’s vagueness concerns in Carhart I,
Congress revised the Partial Birth Abortion Ban Act, defining partial-birth
abortion as a procedure in which the doctor partially delivers a living child
outside his mother’s body — the entire head in a head-first delivery or the
trunk past the navel in a feet-first delivery — then kills the child.
So it was not necessary for the court to overrule Carhart I
when it upheld the more precisely worded federal ban in Carhart II. Banning the
less commonly used procedure, partial-birth abortion, would not create an undue
burden for abortion-minded women, unless, for example, the dismemberment
alternative to partial-birth abortion were far more dangerous. But abortion
doctors have all along (wrongly) insisted that both methods are safe (for the
mother, anyway). So the precedent of Carhart I stands, insofar as state laws banning
partial-birth abortion would still be found unconstitutional if they were to
track Nebraska’s definition.
Where’s the hypocrisy?
Justice Ginsburg and other critics of the recent decision
find it hypocritical and irrational to ban only one gruesome method of abortion
(partial-birth abortion) while another equally gruesome method (dismemberment)
remains legal. “Banning PBA won’t stop a single abortion!” the critics have
lectured us. But we’re not the ones who created the irrational scheme of Roe
under which the law protects the life of a preemie born at 24 weeks’ gestation,
but permits killing a child at full term (40 weeks) because he’s still inside
his mother. Sure we’d like to dispense with the hypocrisy that pretends one’s
physical location is a valid criterion for granting and withholding the right
to not be killed, but the court continues to foreclose that possibility. And
since most critics of the partial-birth abortion ban seem generally to find all
abortions hunky-dory, it’s odd they should criticize Carhart II on the ground
that it will not stop any abortions.
They are also taking too narrow a view when claiming that
partial-birth abortion ban will not stop a single abortion. Justice Kennedy,
writing for the court, explains: “It is a reasonable inference that a necessary
effect of the regulation and the knowledge it conveys will be to encourage some
women to carry the infant to full term, thus reducing the absolute number of
late-term abortions.”
Has the court sold out women’s health by banning
partial-birth abortion?
Partial-birth abortion has never been about the “health of
the mother” — even as broadly defined in Doe v. Bolton (“all factors,”
emotional, familial, age, whatever, related to “well-being”). It’s always been
about the abortion doctor’s convenience and avoiding a live birth. Doing a
dismemberment abortion in mid to late pregnancy takes a lot longer, due to the
child’s stronger bones and ligaments. But after the mother has undergone 2-3
days of cervical dilation (risking infection and cervical incompetence), it
takes only a matter of minutes for the doctor to partially deliver the child
intact, kill him in a way that collapses his skull and complete the delivery.
Early on, abortion supporters defended the procedure by
claiming it was necessary to preserve the mother’s future fertility in the case
of babies with hydrocephalus or other conditions where the mother would be
“ripped apart” by a normal vaginal delivery.
One by one, each “health” reason was exposed as a sham by
experts in maternal-fetal medicine. Even a select panel convened by the
pro-abortion American College of Obstetricians & Gynecologists (ACOG)
“could identify no circumstances under which this [partial-birth abortion]
procedure … would be the only option to save the life or preserve the health of
the woman” (Statement of Policy, Jan. 12, 1997).
Despite this, the court in Carhart I ruled that conflicting
medical opinion on the alleged marginal health benefit of partial-birth
abortion had to be resolved in favor of the abortion doctor’s professional
judgment. In Carhart II, the court gives lawmakers some leeway in deciding what
medical evidence is entitled to greater weight.
Has Roe been struck a mortal blow?
Sadly, no. But it has not been reaffirmed either. To reach a
five-justice majority in Carhart II, Justices Scalia and Thomas — who believe
Roe and Planned Parenthood v. Casey (the 1992 decision that “reaffirmed” Roe)
were wrongly decided — had to join forces with Justice Kennedy who joined in
writing the Casey decision, and with Chief Justice Roberts and Justice Alito,
whose views on Casey are not known.
The majority arrived at a consensus by applying the Casey
principles without endorsing them.
This means that the court determined the constitutionality
of the federal ban by applying a standard of review (the “substantial obstacle”
or “undue burden” tests) rather than the strict or heightened scrutiny
standards used from Roe until Casey.
Justice Kennedy also signaled the court’s willingness to
apply the same rules in deciding the constitutionality of abortion laws as are
followed in other areas of law, putting an end to “abortion distortion.”
Language in abortion statutes will now be interpreted by giving words their
common meaning and reading them in any plausible way that saves the statute
from “unconstitutionality.” In Carhart II, the court admitted that this maxim
had “fallen by the wayside” in construing abortion laws; in fact, courts
sometimes went to great lengths to find an unconstitutional meaning, to invalidate
abortion regulations.
Another example of abortion distortion before Carhart II is
that the court consistently allowed abortion doctors to challenge an entire
abortion law as unconstitutional on its face. When successful, the entire law
was declared void. In Carhart II, the court announced that future court
challenge to the federal partial-birth abortion statute (and perhaps other
abortion laws for which a plaintiff claims a need for a health exception)
should be brought through an “as applied” challenge.
If plaintiffs successfully show they are harmed by the
application of the law to their circumstances, the judge will not void the
entire law, but carve out an exception, narrowly tailored to protect plaintiffs
and others who are similarly situated.
In the area of evidence, too, courts have sometimes treated
abortion doctors as the ultimate authorities on health or safety issues and
what constitutes informed consent. By contrast, opposing testimony by
board-certified medical specialists in obstetrics and maternal-fetal medicine
has been given less weight. Justice Kennedy objected to this bias in his
dissent in Carhart I: “The standard of medical practice cannot depend on the
individual views of Dr. Carhart and his supporters … A ban which depends on the
‘appropriate medical judgment’ of Dr. Carhart is no ban at all.”
Despite continued disagreement among experts on the supposed
“health benefits” of partial-birth abortion, the court in Carhart II stated:
“Medical uncertainty does not foreclose the exercise of legislative power in
the abortion context any more than it does in other contexts.”
The spin cycle on Carhart II began the day after the ruling
when pro-choice members of Congress introduced the “Freedom of Choice Act.” It
calls for taxpayer funding of abortions and nullifying every state and federal
law or policy that “interferes” with abortion. Expect more of the same in the
foreseeable future.
Susan Wills is associate director
for education for the U.S.
Conference of Catholic Bishops’
Secretariat for Pro-Life Activities.
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