Big Abortion Mines Gold From Defeat

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.