WARNING: THE FOLLOWING CONTAINS GRAPHIC DESCRIPTIONS AND EXPLICIT LANGUAGE WHICH MAY, AND SHOULD, CREEP YOU OUT.
The U.S. Supreme Court’s ruling on April 18, 2007, upholding a congressional ban on partial birth abortion, though extremely limited in its scope, is a monumental and welcome breakthrough in the court’s approach to the question of abortion.
At the outset, it must be noted that the limited scope of the ruling is in large part due to the fact that the Partial Birth Abortion Ban Act of 2003 which it upholds is itself extremely limited in its scope, banning only a very specific type of unspeakably ghastly abortion and defining that banned procedure in a very restrictive way. The law and the ruling still leave ghoulish abortionists with options for late-term abortions that are nearly equally as gruesome to contemplate — though contemplate them we must.
The ruling in the case known as Gonzales v. Carhart is a positive development, however, in several subtle but potentially significant ways:
- It places a powerful new emphasis on language in earlier court pro-abortion rulings which previously only paid lip service to what the court said is the government’s "legitimate interests from the outset of the pregnancy in protecting the ... life of the fetus that may become a child." In so doing, it shines new light on historically overlooked aspects of previous court rulings which questioned the legitimacy of abortion for late-term "viable" fetuses.
- For the first time since legalizing murder of unborn humans in 1973, the court has approved a direct ban on an abortion procedure itself (albeit only a specific type), not merely a peripheral restriction, such as parental consent.
- It repeatedly refers to the unborn as children and living humans, not merely tissue or the product of conception, and it frequently uses the word "kill" in describing abortion techniques.
- It honestly and graphically describes the horrific acts of murder and dismemberment which not only this banned procedure involves but which are involved in all forms of legal abortion, which it says are "laden with the power to devalue human life."
- It approvingly cites the government’s and society’s interest in passing legislation which fully discloses to abortion-seeking women the explicit details of the horrific act they are contemplating. This may prove to be a boost to crisis pregnancy centers and others who are working for legislation to require ultrasound procedures and the presentation of their living, moving baby images to mothers seeking abortions.
- For the first time, Justice Anthony Kennedy, the court’s new "swing vote," has come down on the pro-life side of the abortion question, actually authoring this 5-4 majority opinion, suggesting the possibility of a pro-life majority on the court. Although he did not repudiate any of his previous opposite positions, he skillfully seemed to try to reconcile them to his new position in this case.
- Justice Clarence Thomas, with concurrence from Justice Antonin Scalia, reiterated his belief that the court’s previous landmark rulings finding a fundamental right to abortion have "no basis in the Constitution."
Before going into further detail on these positive points from the Gonzales ruling, it is important to be reminded, as Kennedy took considerable pains to do, that certain appalling abortion procedures are still legally available. In the first trimester of pregnancy, abortion "doctors" still have available to them the standard procedure for ending the life of an unwanted baby, killing the baby with chemicals and then sucking it out of the womb with vacuum devices and throwing its remains into garbage cans.
Kennedy described this procedure as follows:
Abortion methods vary depending to some extent on the preferences of the physician and, of course, on the term of the pregnancy and the resulting stage of the unborn child's development. Between 85 and 90 percent of the approximately 1.3 million abortions performed each year in the United States take place in the first three months of pregnancy, which is to say in the first trimester. ... The most common first-trimester abortion method is vacuum aspiration (otherwise known as suction curettage) in which the physician vacuums out the embryonic tissue. Early in this trimester an alternative is to use medication, such as mifepristone (commonly known as RU-486), to terminate the pregnancy. ... The Act does not regulate these procedures.
Of the remaining abortions that take place each year, Kennedy noted, most occur in the second trimester. The surgical procedure referred to as "dilation and evacuation" or "D&E" is the usual abortion method in this trimester and this method is still very much legal for all later term abortions. Although individual techniques for performing D&E differ, the general steps are the same. Kennedy describes this procedure in explicit detail (citations removed):
A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. ... The steps taken to cause dilation differ by physician and gestational age of the fetus. ... A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs, such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix, the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix for two days, while others use dilators for a day or less. ...
After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman's cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed. ...
Some doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus' body will soften, and its removal will be easier. Other doctors refrain from injecting chemical agents, believing it adds risk with little or no medical benefit.
The abortion procedure that was the impetus for the numerous attempted bans on "partial-birth abortion," including the 2003 law, is a variation of the standard D&E and is known primarily as "intact D&E." The main difference between the two procedures is that in intact D&E a doctor extracts the baby intact or largely intact with only a few passes, Kennedy noted, adding that there are no comprehensive statistics indicating what percentage of all D&Es are performed in this manner. He then went on to describe the gory details of intact D&E or partial-birth abortion:
In an intact D&E procedure the doctor extracts the fetus in a way conducive to pulling out its entire body, instead of ripping it apart. One doctor, for example, testified:
"If I know I have good dilation and I reach in and the fetus starts to come out and I think I can accomplish it, the abortion with an intact delivery, then I use my forceps a little bit differently. I don't close them quite so much, and I just gently draw the tissue out attempting to have an intact delivery, if possible...."
Rotating the fetus as it is being pulled decreases the odds of dismemberment. A doctor also "may use forceps to grasp a fetal part, pull it down, and re-grasp the fetus at a higher level — sometimes using both his hand and a forceps — to exert traction to retrieve the fetus intact until the head is lodged in the [cervix]."
Intact D&E gained public notoriety when, in 1992, Dr. Martin Haskell gave a presentation describing his method of performing the operation. ... In the usual intact D&E the fetus’ head lodges in the cervix, and dilation is insufficient to allow it to pass. Haskell explained the next step as follows:
"‘At this point, the right-handed surgeon slides the fingers of the left [hand] along the back of the fetus and ‘hooks’ the shoulders of the fetus with the index and ring fingers (palm down).
"‘While maintaining this tension, lifting the cervix and applying traction to the shoulders with the fingers of the left hand, the surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down, along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger.
"‘[T]he surgeon then forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge the opening. "‘The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely from the patient.’"
Dr. Haskell's approach is not the only method of killing the fetus once its head lodges in the cervix, and "the process has evolved" since his presentation. ... Another doctor, for example, squeezes the skull after it has been pierced "so that enough brain tissue exudes to allow the head to pass through." Still other physicians reach into the cervix with their forceps and crush the fetus' skull. ... Others continue to pull the fetus out of the woman until it disarticulates at the neck, in effect decapitating it. These doctors then grasp the head with forceps, crush it, and remove it.
Some doctors performing an intact D&E attempt to remove the fetus without collapsing the skull. ... Yet one doctor would not allow delivery of a live fetus younger than 24 weeks because "the objective of [his] procedure is to perform an abortion," not a birth. ... The doctor thus answered in the affirmative when asked whether he would "hold the fetus’ head on the internal side of the [cervix] in order to collapse the skull" and kill the fetus before it is born. ... Another doctor testified he crushes a fetus’ skull not only to reduce its size but also to ensure the fetus is dead before it is removed. For the staff to have to deal with a fetus that has "some viability to it, some movement of limbs," according to this doctor, "[is] always a difficult situation."
How sensitive! Crush the baby’s skull while still in the womb so that the attending staff doesn’t get freaked out when they see the tiny infant writhing in pain. Thanks to the mercies of God, a Republican Congress and president, and new wisdom within the Supreme Court, this kind of barbarism is now unlawful in the United States.
Kennedy cited with implicit approval Congress’ revulsion at this inhumanity:
The Act's purposes are set forth in recitals preceding its operative provisions. A description of the prohibited abortion procedure demonstrates the rationale for the congressional enactment. The Act proscribes a method of abortion in which a fetus is killed just inches before completion of the birth process. Congress stated as follows: "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."
Congress was concerned, furthermore, with the effects on the medical community and on its reputation caused by the practice of partial-birth abortion, Kennedy noted. The findings in the Act explain:
"Partial-birth abortion ... confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life."
Kennedy said that an earlier landmark decision of the court, in Planned Parenthood of Southern Pa. v. Casey, which upheld most of the original Roe v. Wade ruling, had reaffirmed the legitimacy of governmental objectives to protect life. "The government may use its voice and its regulatory authority to show its profound respect for the life within the woman. A central premise of the opinion was that the Court's precedents after Roe had ‘undervalue[d] the State's interest in potential life,’" he wrote.
The plurality opinion [in Casey] indicated "[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it." ... This was not an idle assertion. The three premises of Casey must coexist. ... The third premise [see further on this below - GJM], that the State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, cannot be set at naught by interpreting Casey's requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.
Though it resulted here in a welcome step to protection of life, this is still twisted reasoning. Kennedy has here argued that the state is well within its rightful duties to protect life and promote respect for it by barring inhuman abortion procedures, as long as other, less repulsive, procedures remain available to end that very same life. Kennedy went on to say:
The Act's ban on abortions that involve partial delivery of a living fetus furthers the Government's objectives. No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life. Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition. Congress determined that the abortion methods it proscribed had a "disturbing similarity to the killing of a newborn infant," and thus it was concerned with "draw[ing] a bright line that clearly distinguishes abortion and infanticide." ... The Court has in the past confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned. Glucksberg found reasonable the State's "fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia."
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. ... While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.
Kennedy said that in a decision so fraught with emotional consequence, some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. "From one standpoint this ought not to be surprising," he said. "Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue."
It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. ... ("States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning"). The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.
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, Kennedy said. "The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand. The State's interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion."
Kennedy acknowledged that some might object that the standard D&E is in some respects as brutal, if not more, than the intact D&E, so that the legislation accomplishes little. But he said there was no inconsistency on the part of Congress or the court in disapproving one while allowing the other, since partial-birth abortion is especially horrendous.
It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, "undermines the public's perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world." ... There would be a flaw in this Court's logic, and an irony in its jurisprudence, were we first to conclude a ban on both D&E and intact D&E was overbroad and then to say it is irrational to ban only intact D&E because that does not proscribe both procedures. In sum, we reject the contention that the congressional purpose of the Act was "to place a substantial obstacle in the path of a woman seeking an abortion."
Kennedy held that because of the state's interest in promoting respect for human life at all stages in the pregnancy, physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures. "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," he said.
Kennedy argued, and Thomas agreed, that the new anti-abortion ruling in Gonzales is compatible with certain aspects of the court’s earlier pro-abortion rulings in Roe v. Wade and Planned Parenthood v. Casey. He cited the following excerpt from the 1992 Casey decision, which he said set forth three critical principle with regard to legislation on abortion:
"It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each."
Kennedy said that the third principle of the Casey ruling had special bearing in the court's ruling on partial-birth abortion. "To implement its holding, Casey rejected both Roe's rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortion unwarranted," he said. "On this point Casey overruled the holdings in two cases because they undervalued the State's interest in potential life."
Regrettably, the present ruling again affirmed the right to abortions other than partial-birth abortion, although it provided some evidence of the court’s willingness to regulate abortion generally.
We assume the following principles for the purposes of this opinion. Before viability, a State "may not prohibit any woman from making the ultimate decision to terminate her pregnancy." ... It also may not impose upon this right an undue burden, which exists 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." ... On the other hand, "[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose." ... Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar."
We shall have to wait for another day when at least one more member of the court can think consistently through the now more strongly recognized truth that society, through its laws, must safeguard the sanctity of innocent human life at all its stages of development. Without that recognition, there will soon be little to distinguish us from our present enemies who so savagely devalue life and devote themselves so fanatically to a religion and culture of death.
Thankfully, we were governed for a time by a majority in Congress and a president who were sufficiently committed to protecting human life to pass this badly needed legislation. Why the butchers who continue to perform abortions, along with the current majority political party and their former president who twice vetoed similar bans, cannot see their own savagery can only be explained by their utter loss of morality and humanity, making them much akin to those enemies who would utterly destroy all of us.