I Was Wrong: Partial Birth Abortion Ban Upheld
Back at the first of the year, I peered into my obviously on-the-fritz crystal ball and predicted that Justice Kennedy would reverse his earlier position and vote to strike down the federal partial birth (intact dilation and extraction, or D & X) ban. Boy, was I wrong. Not only did he not change his position, he wrote the majority opinion affirming it! (Here is the decision in full.)
I have read the majority opinion. Here are the sections I see as the heart of the ruling:
The principles set forth in the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), [contained] 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 [overturning the federal ban].But, this interest in protecting fetal life does not mean that the esssential holding of Roe v. Wade--that there is a constitutional right to abortion before viability--has been undermined:
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." 505 U. S., at 879 (plurality opinion). 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." Id., at 878. 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." Id., at 877. Casey, in short, struck a balance. The balance was central to its holding. ...
What does this mean? Roe v. Wade has been re-reaffirmed. On the other hand, while I am no expert on this area of jurisprudence, the following assertions seem to be a stronger affirmation of the moral value of nascent human life than has heretofore found its way into most Supreme Court jurisprudence:The government may use its voice and its regulatory authority to show its profound respect for the life within the woman. [Citing Roe. v. Wade.] This was not an idle assertion. The three premises of Casey must coexist...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.It is also interesting to note that the Court made a pretty big deal out of Nebraska's unconstitutional PBA ban using the term "kill[s] the unborn child," and the constitutional federal ban using the term "fetus." It also discusses differing types of abortion as "concerning the way the fetus will be killed," which the Court ruled "is of legitimate concern to the state."
So what is the bottom line? Here's how I see it at first blush:
1) Roe is not in any danger of being overturned as the Court is currently constituted;
2) Casey, not Roe, is now unquestionably the reigning case in abortion jurisprudence;
3) Restrictions and impediments to later term abortions will be permitted, if they are narrowly and precisely written, using medical rather than polemic/advocacy lexicon;
4) The intrinsic value of human life has been boosted. Abortion is unique in this regard because the fundamental issue of the woman's personal autonomy is seen as a conflicting value to protecting embryonic/fetal life. Outside of the abortion context, however, it seems to me that this case could be construed as a strong affirmation of the State's interest in protecting fetal, and perhaps even, embryonic human life.
All in all, a good decision, it seems to me.
posted by Wesley J. Smith @ 1:02 PM
29 Comments
29 Comments:
Do you know how many PBAs are performed each year?
My thoughts...as legislative pragmatics, it's good.
But as precedent, it's bad for it violates the same principles that made Roe extend too far, in that I don't think the federal government should decide what is "medically necessary."
I won't comment on the story in any way except that you've put too many pictures that have no actual relevance to the write up. They look tacky. Please, no.
Sorry you feel that way, Joshua. It was a much longer entry than I like to post, and I thought the pictures--which seem relevant to me--would break things up a bit and make for an easier read. Oh well, you know what they say about not being able to please all of the people all of the time. But thanks for coming by SHS.
I thought you didn't like to discuss abortion here? At least that's what you tell me when I bring it up.
Anyway, I view this decision as a disaster. Rather than, as you say "The intrinsic value of human life has been boosted", the lives of woman have been severely devalued, since this decision makes no provisions to allow abortions that protect the health of the mother. Both the decision and the underlying law are based on the utterly false premise that late-term abortions are never medically necessary.
Wesley,
I was wrong right along with you! It's never been so good to be wrong! I thought Kennedy would wilt in the glow of being the swing justice and find a way to reverse himself and bask in the glow. Evidently he believes that passionate dissent he wrote in Stenberg. And pro-lifers now can have some confidence in Alito and Roberts.
This is huge as Hadley Arkes pointed out because people now will start to question why we allow this abortion and that, until we widdle it down to very few abortions. This is huge. Maybe not now, for the future in many ways.
Raven, I get it, the lives of women increase in value because of the right and ability to and actually murdering their unborn children during the process of delivery by stabbing them in the head and sucking their brains out.
It is bizarre to say that the value of women (and probably equality) depends on the ability to kill the most innocent and helpless people in the human family because they are in their way. It's impossible for a class of people to claim the right to be left alone or demand their equal position/station with other classes and be taken seriously when they trample on others as they have likewise been trampled upon and declare it as a right to do so. No one can say with credibility that the right to trample on any other human being is a fundamental right without which they cannot enjoy all the blessing of liberty and be taken seriously.
This decision did not say that third trimester abortions are never medically necessary. Partial birth abortion is mostly used in the 5th and 6th months-though it is used later in pregnancy. It said you can't kill an unborn child this way unless the mother's life is in danger. They can still kill the unborn by the D & E technique which dismembers the unborn in utero either by cutting or tearing the unborn to pieces.
The Congress heard testimony for years that this is never medically necessary and couldn't find an instance where it was necessary or the only procedure.
This procedure is barbaric and shocks our sensibilities and numbs our senses. It's about time the court got something right on life issues.
PS WHAT happened to our profiles?
mtraven: I normally don't. But this was a big case. I thought I should analyze it.
I have a question for Don and Wesley: What do y'all think about the "knowingly and deliberately" language? To what extent might it make the law unenforceable? (It was one of the additions to the federal law that supposedly differed from the Nebraska law.) Would it not be extremely easy for the abortionist to claim that he was "trying" to perform a dismemberment abortion, pulling the child's leg out, and that "accidentally" the child slipped out to the point of being partially born while still alive, so he "had to" perform a PBA? I gather from skimming the opinion that such an accident, if it really happened, supposedly would not be prosecutable under the act as the justices interpreted it. Could they just not do all PBA's the same way and say this about them?
Lydia: I have no idea. I surmise, not really being involved with the issue, that chilling the act is probably the primary point. It would be hard to enforce since the only one who would really know it occurred would be the doctor.
As to your earlier question, according to testimony (as reported in the New Republic 1997, between 3,000 and 5,000 are performed each year). I know because I touch upon PBA/D&X in Culture of Death.
Reading the Thomas' concurrence, I think both him and Scalia are complete moral cowards. How many times have they ranted about the limits of the Commerce Clause, only to uphold this?
Surely, if the Endangered Species Act violates the commerce clause, surely this federal ban on an abortion procedure would as well. Rather, this only proves that Scalia and Thomas are just as outcome determinative as the targets of their criticism.
Frailty, thy name is Scalia.
I have only had time to read the majority opinion, so far. But that is a cogent criticism, Royale. I think that point is also valid with the medical marijiuana case in which the substance is home grown for home use.
Yes!!! See, I'm not going crazy.
I read the very brief concurrence, and my impression is that Thomas drew attention to the fact that those opposed to the law had not briefed the issue of misuse of the commerce clause in their case before the Court. Is that not legally relevant? I actually don't know, but my impression was that the justices were not obligated (permitted?) to bring in such a constitutional issue if it was not raised by either party in the case _to_ the justices.
Moreover, Royale, let's face it: If they'd struck down this one on commerce clause grounds and upheld an _identical_ state statute that was therefore "clean" of any commerce issues, I don't think you'd be very happy.
Also, if we're going to get careful about the use of the commerce clause, shouldn't we nullify the 1964 Civil Rights Acts? Which Thomas was employed to enforce under Reagan. Somehow I don't think that would please liberals very much.
But really, I'm fairly depressed as a pro-lifer about the unenforceability of the act. It was even more purely and merely symbolic a victory than I thought.
"Moreover, Royale, let's face it: If they'd struck down this one on commerce clause grounds and upheld an _identical_ state statute that was therefore "clean" of any commerce issues, I don't think you'd be very happy."
Apparently, Lydia, you don't know me or you want to stereotype me. If they did that, I'd be dancing in the streets (actuallly, only if the medical necessity exception). I'd be the first to say good riddance to D&X. But....it should be for the proper reason.
That aside, the court can sua sponte can discuss the commerce clause. They're not idiots, they know precisely the commerce clause implications. If they were really interested in "being briefed", fine remand it for a proper briefing.
Here was a great opportunity to stand up for the commerce clause, and what do Scalia and Thomas do? Wash their hands of judgment like Pilate and say "it's not before us."
If you want, I can look for cases where Scalia and Thomas sua sponte considered the commerce clause where it fit the social conservative agenda. I guarantee it's out there.
I didn't follow that about the "medical necessity exception."
So I take it, Royale, you opposed Carhart v. Stenberg and wanted it struck down because it struck down a _state_ law (Nebraska) against PBA? I'm trying to get your position sorted out, here.
I would support a state level ban against D&X provided the ban allowed an exception for medical necessity for the life of the mother.
If that was the issue in Carhart v. Stenberg, then sure.
My understanding is that the Nebraska ban was struck down for a couple of reasons, but chiefly because it included no exception for the _health_ of the mother. An interesting point here, which I have made repeatedly, is that everyone used to understand the "health" exception demanded by Doe v. Bolton, the companion case to Roe, as meaning that the abortionist must bother to assert that the pregnancy itself constitutes a danger to the woman's health, that abortion itself is necessary for her health. But in Carhart v. Stenberg, the issue was whether, abortion having been decided upon for _whatever_ reason, this particular method was the best for the "health" of the mother. Now, what this meant in essence was that Nebraska must permit the decision to abort to be made entirely on non-health reasons but then have a health exception to a ban on this particular _type_ of abortion so that the doctor could use it as the "best" method for the mother's health. This more or less amounts to an admission that abortion on demand for non-health reasons must be permitted, and then we're just wrangling over details like the method.
In any event, the absence of a health exception was one objection to the Nebraska law. I believe it already contained an exception for the woman's life, though I'm open to correction on that.
I think another objection was this whole "accident" thing, where the abortionists were claiming they might be intending to dismember the unborn child and it might be delivered accidentally up to the navel before being killed. Ostensibly the federal bill is better because it allows them to claim accident in such cases, go ahead and suck the child's brains out, and not be prosecuted. To my mind that more or less guts the whole law, but that was another objection to the Nebraska bill.
I am not a lawyer so I can't comment on the legal aspects. I will comment, however, that I am very pleased that the decision went the way it did. For life and not against it. This is why I will still vote Republican even though I do not agree with everything each Republican canidate stands for or votes for. Voting matters! Who appoints the members of the SCOTUS matters! Those who are for life must stick together.
"I will comment, however, that I am very pleased that the decision went the way it did....This is why I will still vote Republican even though I do not agree with everything each Republican canidate stands for or votes for."
That perspective sums up my skepticism of American constitutional law better than I could in an essay. It's all political. Drifting back and forth as the decades pass. It's what the people want, as expressed in this political system. Since what they want which changes over time, constitutional theory does as well.
But it's also why I can't criticize Roe, because if the process is right, then that's what the people wanted.
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Lydia,
Like Wesley, I have no idea about that scenario. This may not be connected but one of the pathetic arguments from the abortion side is that the abortionists won't know when they are breaking the law. What is two plus two? Four, but ask an abortionist or his attorney and the response is "I dunno. That's vague. How could I possibly know? How do I know what 2 means or + sign? How do you interpret the = sign?" These same people who go through medical school and are supposed to have rescued the industry from back alley hacks and who have literature in their clinics describing the difference between the procedures all of the sudden get stupid when hauled into court. They don't have an argument so they say it's vague. Thank God the court didn't go for that garbage this time.
Royale. I spoke to my Senator John Engsign about this in an interview. I thought Stenberg was not open to challenge. The court had ruled and that was that. But he alerted us to the commerce clause and the idea that the court might defer to the congressional findings since they are better able to do that than the judiciary. Sounded good to me. But, about 6 months ago Hadley Arkes at Amherst wrote an article in First Things in which he put us all on notice that Justice Thomas had very strong opinions on the commerce clause and if we didn't die a death with Kennedy on this case, we might die on the commerce clause with Justice Thomas. I don't know his arguments yet, but I was nervous and when I was doing radio was getting ready to prepare our listeners for a stunning defeat. But it didn't happen.
Royale,
Look, I'm as originalist as they come. You wanna be a purist on the commerce clause? Okay, I'm with ya'. Let's overturn the 1964 Civil Rights Act. It was IMO one of the most egregious violations of the 10th Amendment and cynical overreaches using the commerce clause ever. Do you agree?
And if you don't like the politicization of the judiciary, great. By all means, then, criticize Roe. In fact, scream about it, just like me. Say it's a legal blot on the landscape, which it is, and that any court with the slightest integrity would have overturned it before the ink was dry. I mean, come on. If you want there to be jurisprudential integrity and originalism in interpretation, let's go for it. Roe should be one of the first casualties, and stare decisis be damned. And I'd thank God I lived to see the day. But if you're going to invoke stare on Roe, I'm sure gonna invoke it on letting Congress use the commerce clause to federalize private contractual interactions. If you can get fined for refusing to serve blacks at a lunch counter whose trade "affects" interstate commerce, you should be able to have some federal penalty for killing an unborn child at an abortion clinic whose trade "affects" interstate commerce.
Don, I think they would know when they were violating _this_ statute, because it deliberately included that "deliberately and intentionally" language. My problem now is that it would be darned easy to get around it. Just dilate the cervix to the point that the child is pretty much bound to slip out intact, grab the leg, and go from there. If the child happens not to slip out intact, pull a little harder. Oops! The baby came out intact to the navel before I could dismember. Gotta go with a PBA now. Shucks! And it's perfectly legal.
_Probably_ most abortionists won't do this. More likely they'll go with the Tiller method and kill the child first with an injection to the heart. Something to fly under the radar a little less blatantly. Still, it's not really such a great victory as all that, I fear.
Lydia,
I was not arguing a rationale to invoke Roe as stare. And I'm certainly not invoking original intent puritanism, because I don't believe that exists, but that's a very different story.
My point was this - American constitional interpretation is hopelessly contradictory. However, it makes sense if you consider the political context of the great swings.
I think Wickard went way too far and should be curtailed. But, Wickard was necessary for its time to lift America out of the great depression.
The same goes with the Free Speech cases, the Religion cases, etc...the major swings reflect their political context.
So, if you consider democratic theory, where the Supreme Court is the voice of the people because its chosen by the people, then it's all "correct", because we're following the procedure we idealize.
Carhart and Roe are no different. Just extensions of this.
Phos said: I will still vote Republican even though I do not agree with everything each Republican canidate stands for or votes for. Voting matters! Who appoints the members of the SCOTUS matters! Those who are for life must stick together.
Your pro-life Republican administration started a completely unnecessary war in Iraq, leading to 3500 deaths of coalition soldiers and anywhere from 300,000 to 600,000 excess Iraqi deaths. Hope you are proud of yourselves.
But I think if we're going to take that position, Royale (if I understand you), then SCOTUS should be elected. The Constitution should be amended to that effect. Or else there should be some mechanism whereby the legislative branch, elected by the people, can overrule SCOTUS. I say this because the decisions everyone gets het up about were radical at the time they were made. Roe overturned the abortion laws of all the states. SCOTUS is constantly leading the way and going farther than the people want to go on various issues. I'm not *at all* saying I think we could get abortion banned to the extent someone like me would like it to be banned if matters were returned to the people, but we could go a lot farther than Roe will let us go, especially in particular states. So the climate we really have to look at is not the climate of political opinion among the populace but rather the climate of political and ethical opinions among the intellectual elite--the Anointed, as Sowell calls them. But why the heck should people who represent _that_ political climate rule us as life-appointed philosopher-kings? Not only is it not what the founders envisaged, it doesn't seem to me a good idea for a regime even considered in the abstract.
The SCOTUS are elected, by Congress. Congress is elected by the people.
Thus, the people elect SCOTUS.
Lydia,
Good comment about the radical nature of Roe (and Doe-defining the health exception). I don't think it was the will of the people in 1973, as if the nation was going that way. I spoke to Dr. John Wilke, the founder of the Life Issues Institute. He said the Court thought the country was going this way, but it wasn't. In fact NY's abortion laws were going to be overturned and Rocky's veto was going to be overridden when Roe hit. He said legislators west of the Hudson in NY who voted for this were thrown out of office. So the nation was not going that way. The Court stepped in and screwed it up, and as you say, over threw the abortion laws in the states. Rumor has it that the Court was going to release Roe just after the elections in November 1972, but the elections rocked them. So they let it out in January 1973. That's what Wilke told us. We've been paying for it ever since... well the unborn have, almost 50 million. And we've lost a huge part of our democracy at the same time.
If you ask the attorneys involved in Roe and those in the abortion movement, I don't think any of them dreamed of such a radical and sweeping decision which said that a woman needed no reason to abort before the "second trimester" and for almost any reason afterwards. Even they were surprised by the scope.
Royale, how many partial birth abortion are there a year? Well, they used to say hardly any... it was rare. That's until Ron Fitzsimmons with NAF or some abortion group said they were pretty much lying through their teeth. The story was about 500-1000 a year. Maybe a couple thousand. Well, one clinic in NJ said they did 1500 a year. 1500! That sort of blew the lid off that. But then again, we don't say violence is okay because there's not that much of it. If it's less than 1 percent of abortions, that's less than 13,000, about the size of Winnemucca and Fallon Nevada every year having their brains sucked out.
mtraven: Take it to the Daily Kos.
Royale: The members of SCOTUS, as you know, are appointed by the POTUS. The Congress confirms or denies, they don't elect. Hence, the people are only tangentially involved.
But, back to bioethics.
Lydia,
Found this in the PBA decision regarding accidental PBAs. It says no penalty. You have to have intent to do it at the outset. The court is calling PBA intact d & e.
2C(ii) "Respondents' contrary arguments are unavailing. The contention that any D&E may result in the delivery of a living fetus beyond the Act's anatomical landmarks because doctors cannot predict the amount the cervix will dilate before the procedure does not take account of the Act's intent requirements, which preclude liability for an accidental intact D&E. The evidence supports the legislative determination that an intact delivery is almost always a conscious choice rather than a happenstance, belying any claim that a standard D&E cannot be performed without intending or foreseeing an intact D&E. That many doctors begin every D&E with the objective of removing the fetus as intact as possible based on their belief that this is safer does not prove, as respondents suggest, that every D&E might violate the Act, thereby imposing an undue burden. It demonstrates only that those doctors must adjust their conduct to the law by not attempting to deliver the fetus to an anatomical landmark. Respondents have not shown that requiring doctors to intend dismemberment before such a delivery will prohibit the vast majority of D&E abortions. Pp. 24-26."
Yeah, that's what I thought, Don. Again, what that means is that this victory is pretty much purely symbolic. I don't mind including intent in the law when it doesn't make it so easy to get around, but in this case it does.
(While I'm commenting--Royale, there isn't a single elected representative of the people in the U.S. government who is elected for life and can be gotten rid of only by impeachment. Even before there were term limits on the presidency, at least he had to be re-elected every term. _If_ you're going to treat SCOTUS justices as democratic representatives--which they were never meant to be--then there should be a mechanism whereby the people they ostensibly represent can choose someone different if their decisions are egregious and contrary to the will of the people, as they so often have been.)
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