On June 24, an en banc panel of the Fourth Circuit Court of Appeals upheld Virginia’s ban on partial birth abortion, overturning the earlier ruling of a three-judge panel striking down the law. Judge J. Harvie Wilkinson wrote a powerful concurrence to that decision, excerpts of which are printed below.
This is a brutal business for which we are asked to provide constitutional protection, and nothing in law or precedent requires that we do so. To explain that belief requires consideration of three time periods: past, present, and future.
It is inconceivable that the founding generation or the drafters of the Fourteenth Amendment thought that their Constitution dealt with the subject of partial birth abortion. The text of the Constitution does not touch on partial birth abortion, much less sanctify it.
There was nothing in the debates leading to the Constitution’s or the Amendment’s ratification that even approached the matter or anything fairly analogous to it. And if historical practice is any guide, our forebears would have been amazed to discover that the Constitution had whisked the issue of partial birth abortion from the legislative branch and through some mysterious process assigned it to the courts.
Indeed, it is unthinkable the Framers meant to put their imprimatur on a singularly controversial method of abortion so unconnected to those struggles that led to the formation of this nation. Nor does protection for this method of abortion find a foothold in the ideals of equality and liberation from bondage that motivated the conflict out of which the Fourteenth Amendment grew. It disrespects our forebears to make such inventions of their intentions and to invoke the greatness of their creation for ending the creation of a life halfway into this world.
Controversy over abortion has raged in the decades since Roe v. Wade, 410 U.S. 113 (1973). In truth, the matter of early-term abortions is a difficult and intractable one. On one hand, the choice of a female to abort a fetus is not only intimate but agonizing. No one wants to see a ban drive young women into unsafe circumstances. I understand the argument too that a momentary lapse in judgment should not be the occasion for severe burdens that may handicap a woman’s education and career throughout life. See Gonzales v. Carhart, 550 U.S. at 171–72 (Ginsburg, J., dissenting).
On the other hand, it is unsettling to tamper with the most sacred of life’s cycles and disquieting for those here on earth to pull the ladder up on those who would join the human company. . . . To invalidate Virginia’s statute on its face solely because it applies in this highly unusual circumstance is to say that courts have the ability not merely to create non-textual rights but to oversee their infinite permutations. To say further that the Virginia legislature cannot act to preserve humane ideals of protecting life not only traduces the views of past generations but denies present generations the opportunity to act upon the best and noblest of impulses.
All civilizations will be measured in the fullness of time. Perhaps fine art, great invention, sustained prosperity, or enhanced longevity mark the quality of civilized life. Perhaps, I say, because there must be something more. How a society treats its most vulnerable members may do more than grandiosity to shape its lasting worth. A partially born child is among the weakest, most helpless beings in our midst and on that account exerts a special claim on our protection. So we can talk at length about facial challenges and as-applied challenges, and “standard D&E” procedures and “intact D&E” procedures, and “anatomical landmarks,” and “disarticulation,” and “fetal demise.” And we can deploy this terminology to disguise what is happening, in the name of our founding document no less.
The future, however, will not be similarly misled. The fact is that we—civilized people—are retreating to the haven of our Constitution to justify dismembering a partly born child and crushing its skull. Surely centuries hence, people will look back on this gruesome practice done in the name of fundamental law by a society of high achievement. And they will shudder. . . . Such treatment of the truly helpless will not stand the test of time. Virginia’s statute invokes the consent of the governed to soften the sting of the impending rebuke.
Our invocation of precepts found nowhere in the Constitution’s text or history will not provide us a comparable defense. Where the people’s will and moral claims on behalf of the powerless are aligned, plying the Constitution to defeat both is a wrong future generations will not overlook. They will understand this inversion of law’s legitimate role in protecting the weak, and they will ask: “What on earth were they thinking? What on earth were they thinking?”