President Bush signing the bill banning partial-birth infanticide on 5 November 2003, surrounded by retrograde, woman-hating congressmen
Yesterday, the United States took a step towards becoming a civilized nation again (if it ever was), attaining (only to a degree) to the moral level of the ancient Greek physician and father of medicine Hippocrates, and moving a notch above Nazi morality, when its Supreme Court outlawed the practice of partial birth infanticide (see visual depictions of the actual procedure, and the desired result -- not for the faint of heart; be forewarned).
Over four thousand preborn babies are still murdered every day (more than the death toll of 9-11), with full consent of the law. We mustn't ever forget that, and never cease working to end the holocaust, yet this is the most significant legal pro-life victory, by far, since 1973. And it is wonderful to see that, after years and years of toil and hopes of pro-life activists.
Significantly, the five Justices who voted to ban this gruesome and brutal outrage were all Catholics (Anthony Kennedy, who wrote the opinion, Chief Justice John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito). This is the first time the Court has had a majority of Catholic Justices. Stephen Breyer and Ruth Bader Ginsburg are Jewish. David Souter is Episcopalian, and John Paul Stevens a Protestant of undisclosed affiliation.
*** CLICK ON "Tolle, lege!" immediately below to finish this article ***
Catholic writer James Hitchcock has described Justice Stevens as "apparently without formal religious affiliation. Stevens sees opposition to abortion as essentially religious, so that there can be no legal restrictions on the practice. He has also questioned whether private religious education is good for the nation." Stevens has quite an atrocious record with regard to religious freedom:
Stevens was the bete noire of religious conservatives. He provided regular support for a constitutional “right to die” and for abortion rights, and made the startling claim in Webster v. Reproductive Health Services that a statutory preamble stating that human life begins at conception violated the Establishment Clause because it served “no identifiable secular purpose.” He was a rare adherent to views of both the establishment clause and free exercise clause that were unhelpful to religious groups; indeed, Stevens was the only Justice to consistently vote both to single out religious organizations for exclusion from generally available benefits and not to single them out for protection from the burdens of generally applicable laws. And he alone argued that accommodations of religion are, by their nature, violations of the Establishment Clause. Stevens also was the author of the rhetoric most mistrustful of religion during his time on the Court.If ever there was a demonstration that religion has a huge influence on one's moral outlook (as well as jurisprudence), this is it. Millions of pro-life anti-Catholics are rejoicing today at the decision of five unregenerate, pagan, idolatrous Catholics. Somehow they got it right, while entire Protestant denominations have caved on the abortion issue.
Let's now look at some of the reasoning Attorney General Alberto Gonzales gave in his certiorari to the United States Court of Appeals for the Eighth Circuit (11-8-06) [see the complete transcripts of the case]. My comments are in blue:
In the usual second-trimester procedure, "dilation and evacuation" (D&E), the doctor dilates the cervix and then inserts surgical instruments into the uterus and maneuvers them to grab the fetus and pull it back through the cervix and vagina. The fetus is usually ripped apart as it is removed, and the doctor may take 10 to 15 passes to remove it in its entirety. The procedure that prompted the federal Act and various state statutes, including Nebraska's, is a variation of the standard D&E, and is herein referred to as "intact D&E." The main difference between the two procedures is that in intact D&E a doctor extracts the fetus intact or largely intact with only a few passes, pulling out its entire body instead of ripping it apart. In order to allow the head to pass through the cervix, the doctor typically pierces or crushes the skull.
The Act responded to Stenberg in two ways. First, Congress found that unlike this Court in Stenberg, it was not required to accept the District Court's factual findings, and that that there was a moral, medical, and ethical consensus that partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.
Self-evident . . .
The Casey Court reaffirmed what it termed Roe's three-part "essential holding": . . . third, the State has legitimate interests from the pregnancy's outset in protecting the health of the woman and the life of the fetus that may become a child.
Scientifically and philosophically absurd language: the "fetus" is a "child" from the moment it is conceived, because nothing but time and nutrition (and change of location) are required for it to develop in a continuous way into an adult person. Everything is present from conception for this to happen (most notably, the DNA that controls all development). Not only is this not a "may become" proposition: the fetus already is a child, or a human being or person from the first moment of its existence.
Casey struck a balance that was central to its holding, and the Court applies Casey's standard here. A central premise of Casey's joint opinion--that the government has a legitimate, substantial interest in preserving and promoting fetal life--would be repudiated were the Court now to affirm the judgments below.
Justice Kennedy has likewise argued in the past that Casey was a reasonable attempt to consider both the life of the child and that of the mother, rather than give all the rights to the mother and none at all to the child. He viewed this decision as an application, therefore, of the principles laid down in Casey.
3. The Act, measured by its text in this facial attack, does not impose a "substantial obstacle" to late-term, but previability, abortions, as prohibited by the Casey plurality, 505 U. S., at 878. Pp. 26-37.
(a) The contention that the Act's congressional purpose was to create such an obstacle is rejected. The Act's stated purposes are protecting innocent human life from a brutal and inhumane procedure and protecting the medical community's ethics and reputation. The government undoubtedly "has an interest in protecting the integrity and ethics of the medical profession." Washington v. Glucksberg, 521 U. S. 702, 731. Moreover, Casey reaffirmed that the government may use its voice and its regulatory authority to show its profound respect for the life within the woman. See, e.g., 505 U. S., at 873. The Act's ban on abortions involving partial delivery of a living fetus furthers the Government's objectives. Congress determined that such abortions are similar to the killing of a newborn infant. This Court has confirmed the validity of drawing boundaries to prevent practices that extinguish life and are close to actions that are condemned. Glucksberg, supra, at 732-735, and n. 23. The Act also recognizes that respect for human life finds an ultimate expression in a mother's love for her child. Whether to have an abortion requires a difficult and painful moral decision, Casey, 505 U. S., at 852-853, which some women come to regret. In a decision so fraught with emotional consequence, some doctors may prefer not to disclose precise details of the abortion procedure to be used. It is, however, precisely this lack of information that is of legitimate concern to the State. Id., at 873. 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. The objection that the Act accomplishes little because the standard D&E is in some respects as brutal, if not more, than intact D&E, is unpersuasive. It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, undermines the public's perception of the doctor's appropriate role during delivery, and perverts the birth process. Pp. 26-30.
The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their positions. The Court's precedents instruct that the Act can survive facial attack when this medical uncertainty persists. See, e.g., Kansas v. Hendricks, 521 U. S. 346, 360, n. 3. This traditional rule is consistent with Casey, which confirms both that the State has an interest in promoting respect for human life at all stages in the pregnancy, and that abortion doctors should be treated the same as other doctors. Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.
Other considerations also support the Court's conclusion, including the fact that safe alternatives to the prohibited procedure, such as D&E, are available.
A reminder of the chilling legality of D & E ("dilation and evacuation"; more accurately described as "dismemberment and evacuation"). This serves to remind pro-lifers that the present victory is only minimal at best, with this sort of brutal, schizoid mentality still fully intact in US law. But every thousand-mile journey begins with the first step.
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Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, and Alito, JJ., joined. Thomas, J., filed a concurring opinion, in which Scalia, J., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined.
Compared to the state statute at issue in Stenberg, the Act is more specific concerning the instances to which it applies and in this respect more precise in its coverage. We conclude the Act should be sustained against the objections lodged by the broad, facial attack brought against it.
Of the remaining abortions that take place each year [estimated at 10-15% based on his previous paragraph], 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. Planned Parenthood, 320 F. Supp. 2d, at 960-961. Although individual techniques for performing D&E differ, the general steps are the same.
. . . 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. See, e.g., Nat. Abortion Federation, supra, at 465; Planned Parenthood, supra, at 962.
Intact D&E [medical term for partial-birth abortion] gained public notoriety when, in 1992, Dr. Martin Haskell gave a presentation describing his method of performing the operation. Dilation and Extraction 110-111. In the usual intact D&E the fetus' head lodges in the cervix, and dilation is insufficient to allow it to pass. See, e.g., ibid.; App. in No. 05-380, at 577; App. in No. 05-1382, at 74, 282. Haskell explained the next step as
" '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.' " H. R. Rep. No. 108-58, p. 3 (2003).
This is an abortion doctor's clinical description. Here is another description from a nurse who witnessed the same method performed on a 26-week fetus and who testified before the Senate Judiciary Committee:
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. Planned Parenthood, 320 F. Supp. 2d, at 965. 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." App. in No. 05-380, at 41; see also Carhart, supra, at 866-867, 874. Still other physicians reach into the cervix with their forceps and crush the fetus' skull. Carhart, supra, at 858, 881. 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. Id., at 864, 878; see also Planned Parenthood, supra, at 965.
" 'Dr. Haskell went in with forceps and grabbed the baby's legs and pulled them down into the birth canal. Then he delivered the baby's body and the arms--everything but the head. The doctor kept the head right inside the uterus... .
" 'The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.
" 'The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp... .
" 'He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.' " Ibid.
God help us all . . .
. . . 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."Yes, very "difficult." It's good to see that there is a shred of human decency and compassion in these barbaric demon-inspired monsters who call themselves "doctors".
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After Dr. Haskell's procedure received public attention, with ensuing and increasing public concern, bans on " 'partial birth abortion' " proliferated. By the time of the Stenberg decision, about 30 States had enacted bans designed to prohibit the procedure. 530 U. S., at 995-996, and nn. 12-13 (Thomas, J., dissenting); see also H. R. Rep. No. 108-58, at 4-5. In 1996, Congress also acted to ban partial-birth abortion. President Clinton vetoed the congressional legislation, and the Senate failed to override the veto. Congress approved another bill banning the procedure in 1997, but President Clinton again vetoed it. In 2003, after this Court's decision in Stenberg, Congress passed the Act at issue here. H. R. Rep. No. 108-58, at 12-14. On November 5, 2003, President Bush signed the Act into law. It was to take effect the following day. 18 U. S. C. §1531(a) (2000 ed., Supp. IV).
Good ole Democrats; always advocates of the "little guy" and the downtrodden and the oppressed being led away to slaughter . . . the "civil rights" party . . .
Congress found, among other things, that "[a] moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion ... is a gruesome and inhumane procedure that is never medically necessary and should be prohibited."
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Whatever one's views concerning the Casey joint opinion, it is evident a premise central to its conclusion--that the government has a legitimate and substantial interest in preserving and promoting fetal life--would be repudiated were the Court now to affirm the judgments of the Courts of Appeals.
. . . we must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child.The same dumb anti-scientific language of "may become a child." This is even more silly and arbitrary than the non-scientific distinctions of "trimesters." But hey, the Court has figured out that there may be a child here: even if it is only a "maybe child" or in potentiality only. A bird's egg "may become" a bird one day. How profound. It takes some folks longer than others to learn their elementary biology and proper definitions of things.
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.Real progress!"Trimesters" and absolute unconcern for preborn human beings are (legally) on a downward trend . . .
Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar.
In other words, it took baby steps to rudimentary logic, common sense, and the most basic humanitarian compassion for fellow human beings. And now this massive increase in moral and logical comprehension is finally being brought to bear in new Supreme Court decisions.
First, the person performing the abortion must "vaginally delive[r] a living fetus." §1531(b)(1)(A). The Act does not restrict an abortion procedure involving the delivery of an expired fetus. The Act, furthermore, is inapplicable to abortions that do not involve vaginal delivery (for instance, hysterotomy or hysterectomy). The Act does apply both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb.In other words, "doctors" need merely kill the child inside the womb, and that will still be perfectly legal. That's because all involved can pretend in those instances that the "fetus" is not viable, being safely hidden behind abdominal walls. Out of sight, out of mind . . . As long as the child is murdered in the dark, in secret, then all is well with the world and it is a major moral difference. Pro-lifers obviously still have much work to do, but it's a start.
Second, the Act's definition of partial-birth abortion requires the fetus to be delivered "until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother." §1531(b)(1)(A) (2000 ed., Supp. IV). The Attorney General concedes, and we agree, that if an abortion procedure does not involve the delivery of a living fetus to one of these "anatomical 'landmarks' "--where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the mother--the prohibitions of the Act do not apply. Brief for Petitioner in No. 05-380, p. 46. . . . To begin with, the physician must have "deliberately and intentionally" delivered the fetus to one of the Act's anatomical landmarks. §1531(b)(1)(A). If a living fetus is delivered past the critical point by accident or inadvertence, the Act is inapplicable.
So if the entire head is not pulled out, or the body in a breech delivery not past the navel (what profound, non-arbitrary distinctions), the child can still be legally killed. It's a loophole that would seem to allow almost all such infanticides to continue to take place. It looks, then, that this ruling is only significant in terms of changing the course of the direction of previous abortion law, and opening the door for actual sensible, consistent pro-life restrictions. For the baby who is killed with its navel inside the birth canal rather than outside, there is little difference. The child still gets to experience having his or her skull crushed, and/or brains sucked out after an incision with scissors.
How far our wonderful nation has progressed morally! Who could fail to be impressed?! In 1965 (a short 100 years after slavery was outlawed) a majority figured out that a black person ought to be able to sit at a lunch counter and eat and ride in the front of a bus, or attend a school that everyone else attends. Now, we know so much that we can figure out that if you don't pull a viable preborn child out of his or her mother past the navel, then the child has no rights and isn't human, and no person, and can be murdered (oops, "terminated").
But another half-inch and everything changes and the child is now a person and has human rights. Surely, the pagans Hammurabi and Aristotle and Cicero must be green with envy at how much we have learned about morality and righteousness in these thousands of years. How much profound moral wisdom and insight the Nazi "doctors" who experimented in the death camps could have gained! If only they were alive to witness this remarkable development . . .
Though I'm no expert on legal matters, I'm quite sure this is a key factor and consideration. Hence, Justice Kennedy's language: "Unlike the statutory language in Stenberg that prohibited the delivery of a " 'substantial portion' " of the fetus--where a doctor might question how much of the fetus is a substantial portion--the Act defines the line between potentially criminal conduct on the one hand and lawful abortion on the other" But that is small solace, where live human beings are being talked about as if they were more worthless than, and as disposable as, cockroaches underneath a rock.
The Act excludes most D&Es in which the fetus is removed in pieces, not intact. If the doctor intends to remove the fetus in parts from the outset, the doctor will not have the requisite intent to incur criminal liability.
Just tear the poor child to shreds: that remains perfectly legal. I'm sure the child-killers will be most accommodating and ingenious and inventive in adjusting to the new restriction.
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." . . . The three premises of Casey must coexist. See id., at 846 (opinion of the Court). The third premise, 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.Progress . . . very slight and filled with continuing moral absurdities and monstrosities, but real nonetheless . . .
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.
Very good. The first sentence refreshingly states the obvious.
Congress determined that the abortion methods it proscribed had a "disturbing similarity to the killing of a newborn infant," Congressional Findings (14)(L), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769, and thus it was concerned with "draw[ing] a bright line that clearly distinguishes abortion and infanticide." Congressional Findings (14)(G), ibid. 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." 521 U. S., at 732-735, and n. 23.
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. Casey, supra, at 852-853 (opinion of the Court). 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. See Brief for Sandra Cano et al. as Amici Curiae in No. 05-380, pp. 22-24. Severe depression and loss of esteem can follow. Ibid.
This is rather remarkable language, in relation to the chilling, unconcerned language of past related legal rulings, with regard to the preborn child. The nod to post-abortive trauma is also very encouraging. US law on abortion will now begin to have some slight shred of moral sanity and elementary rationality. That in itself is a virtual miracle.
Of course, pro-life activists have argued for years that the pro-abortion crowd loves to keep their "patients" in gross ignorance -- knowing that the more the woman actually knows, the less profits they will make.
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. Casey, supra, at 873 (plurality opinion) ("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.
Excellent, even with its obvious flaws (the last clause).
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. 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.
This sort of language and reasoning is a significant shift in the direction of abortion law. In that sense, we can take great heart in it. It's light years ahead of the anti-scientific, Nazi-like "reasoning" of Roe v. Wade and Doe v. Bolton, of 1973.
It is objected 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.
He got that right. My reaction exactly.
There would be a flaw in this Court's logic, and an irony in its jurisprudence, . . .
Really???!! That would be a first, huh?
. . . 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." 505 U. S., at 878 (plurality opinion).
Hopefully, what Justice Kennedy is expressing in "legal-speak" is that "this is the best we can accomplish right now, realistically, in legal terms, and it is better than nothing. Maybe later we can rectify the glaring double standards still left in place."
This traditional rule is consistent with Casey, which confirms 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. In Casey the controlling opinion held an informed-consent requirement in the abortion context was "no different from a requirement that a doctor give certain specific information about any medical procedure." 505 U. S., at 884 (joint opinion). The opinion stated "the doctor-patient relation here is entitled to the same solicitude it receives in other contexts." Ibid.; see also Webster v. Reproductive Health Services, 492 U. S. 490, 518-519 (1989) (plurality opinion) (criticizing Roe's trimester framework because, inter alia, it "left this Court to serve as the country's ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States" (internal quotation marks omitted)); Mazurek v. Armstrong, 520 U. S. 968, 973 (1997) (per curiam) (upholding a restriction on the performance of abortions to licensed physicians despite the respondents' contention "all health evidence contradicts the claim that there is any health basis for the law" (internal quotation marks omitted)).
Important legal considerations that need to be further refined in the future.
Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman's right to abortion based on its overbreadth or lack of a health exception. For these reasons the judgments of the Courts of Appeals for the Eighth and Ninth Circuits are reversed.
Praise God. Now let's keep pressing for more sweeping change. It's only the beginning . . .