One of the best lines in Gonzales v. Carhart, the SupremeCourt decision upholding (5-4) the federal partial birthabortion ban, came in Justice Ginsburg’s dissent. Shestates: “Retreating from prior rulings that abortion restrictions cannotbe imposed absent an exception safeguarding a woman’s health, theCourt upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman’s reproductive choices.”
To which one can only respond: RIGHT ON!
Justice Ginsburg’s reference to “safeguarding a woman’s health” and “a woman’s reproductive choices” is telling. This case wasn’t about this or that particular woman, or women in general. Rather, “a woman” whose health is supposedly not safeguarded by this statute never existed. She was the hypothetical construct of the plaintiff abortion providers and promoters who challenged the ban.
“A woman” has or may have every life- and health-threatening condition known to medicine, in every possible combination. Despite her precarious condition, she has shown remarkable longevity. For over two decades, she has appeared in case after case challenging abortion restrictions. And in each case, any law which even arguably threatened “a woman’s” health was struck down. More importantly, these laws were struck down before they had a chance to take effect, to test whether there was any real woman who had the health problems that “a woman” had.
“A woman’s” chokehold on abortion legislation first ran into trouble in Ayotte v. Planned Parenthood, 546 U.S. 320 (2006), the Supreme Court decision involving New Hampshire’s parental notification law. The lower court enjoined the law in its entirety before it went into effect, because it did not contain an exception for “a [minor] woman’s” health.
The Supreme Court granted review, unleashing a torrent of amicus briefs from pro-life and profamily organizations experienced in parental involvement laws. One brief pointed out that, in the states that had reporting requirements in conjunction with their parental involvement laws, there were a minuscule number of reports, if any, of abortions being performed for medical reasons, never amounting to more than hundredths of a percent of the total number of minor abortions. Other states have had parental involvement laws lacking health exceptions in effect for years, with no reported ill effects on minors. Another brief walked the justices through the scenario of a minor facing a major pregnancy-related medical emergency. In any other health-related crisis a minor might face, the doctor, while doing what was immediately medically necessary, would be clamoring to get a parent to the girl’s side, or at least on the phone. Why, just because this particular health crisis relates to pregnancy, do the courts say that a medical emergency is a license for a doctor not to consult parents? There is certainly the appearance that the “emergency” would be an excuse for a secret abortion, not the reason for it. And the lack of such an exception was the excuse for striking down the law, not the reason for it.
In a unanimous opinion, the Supreme Court reversed and remanded the decision in Ayotte, directing the lower court to consider a less drastic remedy than invalidating the entire statute. Unfortunately, during the time it took for the case to reach the Supreme Court, the political landscape in New Hampshire had shifted, and the legislature has voted to repeal the law altogether. (1) In effect, “a woman’s” health ran out the clock on the New Hampshire law.
Meanwhile, “a woman” had succeeded in preventing the federal partial birth abortion ban from going into effect. Relying on the Supreme Court’s earlier decision, Stenberg v, Carhart, 530 U.S. 914 (2000), striking down Nebraska’s partial birth abortion ban, federal courts in California, Nebraska, and New York struck down the federal ban because of the lack of a health exception. Lawyers for the government attempted to subpoena medical records of women patients who had undergone partial birth abortions, to test the plaintiffs’ claims about the medical necessity of any of these abortions, but a federal appeals court refused to allow access to these records. Once again, it was “a woman’s” health at issue, not any particular woman. Plaintiffs and their expert witnesses were allowed to hypothesize about the relative safety and effects of various procedures and various techniques, without having any of their speculations tested against reality. Testimony from opposition experts was dismissed because, for the most part, these experts either did not perform abortions or did not use the methods at issue (as if a police forensics expert must commit crimes in order to qualify as an expert on them). Armed with findings supporting their position that partial birth abortions are necessary for “a woman’s” health, plaintiffs could feel confident of another victory.
The Supreme Court’s decision in Gonzales, authored by Justice Kennedy, consists of two main parts. The first part rejected the contention that the Act was vague and overbroad. This part (discussed more fully below) was really at the heart of why partial birth abortion had emerged as a national issue. The second part dealt with the lack of a health exception. Without providing any rationale for departing from its holding in Stenberg, Kennedy rather abruptly rejected the plaintiffs’ contention, quoting from Stenberg itself, that a health exception is required if “substantial medical authority supports the proposition that banning a particular procedure could endanger women’s health.” On the contrary, Kennedy wrote, “considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends.” In sum, “medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.” (2)
But the biggest surprise came at the end of the decision, where it stated that “these facial attacks should never have been brought in the first place. . . . [A preenforcement, as-applied challenge] is the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the act must be used.” With that holding, the Court firmly booted “a woman” out the courthouse door. From now on (barring some initial “did we hear you correctly?” decisions from the more obstinate circuits), abortion providers seeking to enjoin a statute before it is enforced must bear the “heavy burden” of showing that it would be unconstitutional in a “large fraction” of the relevant cases, or content themselves with enjoining its enforcement only in “discrete and well-defined” circumstances.
This sea-change in abortion jurisprudence—the clear imposition of new, stricter standards for challenges to abortion restrictions—is an unambiguous, and unexpected, victory for the pro-life cause. The extent of the victory on other fronts, which has been the subject of some heated discussions, must be considered from the perspective of what pro-lifers hoped to accomplish in challenging partial birth abortion in the first place.
Abortionist Martin Haskell first described partial birth abortion (also known as “intact dilation and evacuation,” or “intact D&E”) at a presentation to fellow abortionists in 1992. Word of this barbaric procedure leaked out, and pro-lifers saw an opportunity, both educational and legal, to tear the mask of euphemisms off the “medical procedure” of abortion and reveal it in all its subhumanity. It raised the question: when is abortion no longer abortion, but infanticide? Can we use this practice to make the Court draw a line between the “right” to abortion and the crime of infanticide, and then push that line back?
Realizing the public relations debacle they were facing, pro-abortion forces first tried to deny that the procedure existed, and, failing that, claimed that it was rarely used. When those lies were exposed, and legislatures began passing laws banning partial birth abortion, the proaborts switched to a different tack: almost every abortion is, or can be, a partial birth abortion, i.e., the delivery of part of a living fetus. This served them well in the courtroom, as courts struck down ban after ban as being vague and overbroad. The unpleasant side effect was a legacy of sworn testimony by abortion doctors detailing the barbarity of every type of surgical abortion procedure. Abortionists coolly discussing the fact that they start by twisting or vacuuming a leg off a fetus, which is then still living in the womb with its leg “delivered”—well, that may win court cases, but it’s not going to win any popularity contests. (3)
The campaign against partial birth abortion had political as well as educational benefits. Before partial birth abortion, the media lexicon allowed all pro-abortion
politicians to be called “moderates.” But when politicians had to go on the record as being either for or against partial birth abortion, that term was no longer available to hide behind. If a politician tried to claim he occupied some sort of “moderate” middle ground on abortion, he could easily be tripped up by the question, “But isn’t it true that you voted against the partial birth
One area in which the partial birth abortion campaign fell short was in allowing the procedure to be classified as an abortion at all. What if, instead of passing a ban, with its own code section and penalties, Congress had simply declared that, past the specified “anatomical landmark,” as Justice Kennedy termed it, this was no longer a matter of abortion at all, but of killing a person protected under the Fourteenth Amendment. In effect, Congress would be saying to the Supreme Court, “You said in Roe v. Wade that an unborn child is not a person. We say that, at or past this point, he or she is born, and is therefore a person.”
Because partial birth abortion was treated as abortion, not infanticide, the “ban” is hedged in with so many qualifications about alternative methods for killing babies (and what to do if you find yourself unexpectedly holding a partially delivered baby), that one almost wishes the subject had never come up. It is chilling to read the opinion’s detailed, clinical descriptions, not only of partial birth abortion, but ordinary dilation and evacuation, where a baby is dismembered in the womb, and lethal injections that can be given to kill a baby before delivery. One cannot cherish any illusion that Kennedy and the other justices are operating under any misunderstanding. The decision says it is permissible to ban this gruesome way of killing a baby, but that there are other methods, more or less as gruesome, still legally available.
For this reason, one comes away from reading the decision, not with any feeling of elation, but of great sadness and even fear for our country, and for our souls. I think the best practical reaction to the decision came from Mark Crutcher, of Life Dynamics: “My advice is (a) pause for a moment to celebrate the victory, (b) don’t read more into it than is actually there, and (c) get back to work. Babies are still dying.”
1. Fraud alert: the New Hampshire situation is already being cited by abortion advocates as one in which a parental involvement law has been reconsidered and repealed, by which they imply that it was found in practice to be a bad law. As detailed above, the law never took effect. Its repeal resulted simply from the shift of power in the legislative and executive branches.
2. Elsewhere in the opinion, Kennedy took aim at abortion exceptionalism: “The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community.”
3. For an excellent summary of the testimony in those trials, see “Partial Birth Abortion on Trial” by Cathy Cleaver Ruse. [http://www.nrlc.org/abortion/pba/RusePBAonTrial.pdf]