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8/1/2007 - August 2007 Educational Update - Gonzales v. Carhart A Step Away From Roe?




To:                  SLI Supporters                                 


Date:               August 2007


From:              A. Eric Johnston


Re:                  Gonzales v. Carhart - A Step Away From Roe?[1]



            For the first time since 1973, the U.S. Supreme Court has retreated from its decisions legalizing abortion on demand, primarily Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v Casey, 505 U.S. 833 (1992).  The case deals with a type of abortion process termed "partial birth abortion," technically known as an "intact dilation and evacuation" ("intact D&E").  To use the words of Congress, it "is a gruesome inhumane procedure" in which, to use the words of the Court, "a fetus is killed just inches before the completion of the birth process." 


            This procedure was first prohibited by Congress in a similar law which resulted in the Court's decision in Stenberg v. Carhart, 530 U.S. 914 (2000), holding it unconstitutional because there was no health of the mother exception.  Congress made extensive findings that there is no medical need for a health exception and again passed a statute which resulted in this court decision.  The health exception is understood to be a loophole allowing the abortion doctor virtually any excuse to perform an abortion.  Such an exception renders any law useless.


            The primary reason the Court upheld the constitutionality of the most recent law, without a health exception, was because abortion doctors have available to them the "dilation and evacuation" procedure ("D&E").  The difference between it and the intact D&E is that in the former, the baby is dismembered and taken out in parts and is obviously killed in the process.  In the latter, the baby is almost born alive, i.e., the body is delivered, then the brains are aspirated and the skull is crushed before removal.  The law meets the undue burden standard of Casey because it does not prohibit an abortion; the abortion may be performed using the D&E procedure.  Both procedures are used for later term abortions, when the child is larger and more fully developed.


            The Court made its decision based on the nature of the procedure.  Recognizing the intact D&E procedure virtually delivers a viable child, the Court said the state has an interest in protecting "the life of a fetus that may become a child."  It is reasonable for Congress to be concerned that the partial-birth abortion procedure "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."  Whether we blame Justice Kennedy or Congress, it is as if it is okay to cut up the baby first, rather than deliver it whole; somehow, that makes the child less human.


            Another important consideration of this decision is the type of review by the court.  There are two types, "facial" and "as applied."  Under a facial challenge, a law has not gone into effect and the plaintiff must prove that a law is vague and people of ordinary intelligence do not know what is prohibited or its application is too broad.  The Court concluded no health exception was necessary and, on its face, it does not place a burden on the woman's right to choose.  The Court said that an "as applied" challenge can be brought at a later time, that if in practice medical evidence shows it does not protect the woman's health, then the statute would be unconstitutional.  An as applied challenge is a possibility and, perhaps, even a probability. 


            During the 1990's when there were multiple states' efforts to pass partial-birth abortion laws,[2] there was a recognition that it would probably not prohibit many abortions, though it would certainly put a dent in the baby body parts trade (virtually whole delivered unborn children are more valuable to both private and public research entities), but that it would be significant in the education of the public on the humanity of the unborn child.  It has, no doubt, served that purpose and even the Court recognized that "the state has an interest in advancing the dialogue of the political and legal systems, the medical profession, mothers and society on the consequences of the abortion decision."  We certainly hope there will be another step to advance that dialogue to someday end the right to abortion.  For these reasons, we must be encouraged.


            Gonzales v. Carhart was a 5-4 decision, written by Justice Kennedy who has fully supported the right to abortion, was joined by pro-life Justices Thomas and Scalia, and notably the two new Justices, Chief Justice Roberts and Justice Alito.  While Kennedy used some "pro-life" language in his opinion, Thomas and Scalia reiterated abortion "has no basis in the Constitution."  Justice Ginsberg wrote a dissenting opinion affirming abortion rights which was joined by Justices Stevens, Souter and Breyer.  We still remain one vote short of reversing Roe.  This makes the 2008 presidential election particularly significant because every Democrat contender and the three top-tier GOP candidates have recognized the abortion right.  The obvious prediction would be from all those who we know to be electable today, none will probably put the fifth pro-life vote on the U.S. Supreme Court. 


            The case reinforces some principles in the Roe and Casey decisions that the state has some interest in protecting life, but it does not step away from the right to abortion.  We must be encouraged, however, because the educational part of this process has helped more Americans recognize the personhood of the unborn child.


[1] For a detailed analysis, visit our website (www.southeastlawinstitute.org) and select "Newsletter" and then click on 4/22/2007 - Gonzales v. Carhart - A Step Away From Roe?

[2] The Alabama Partial-Abortion Ban Act of 1997, Section 26-23-1,  1975 Code of Alabama,  did not have a health exception.  It was held unconstitutional in Summit Medical Associates PC v. Siegelman, 130 F.Supp.2d 1307 (M.D. Ala., 2001). 


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