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4/27/2007 - Gonzales v. Carhart - A Step Away From Roe

TO:                 The Alabama Pro-Life Coalition, Inc. and Other Interested Persons


FROM:           A. Eric Johnston


DATE:            April 27, 2007


RE:                 Gonzales v. Carhart - A Step Away From Roe?



            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 decision, Gonzales v. Carhart, raises many questions and contemplations.  Time will answer these, but as we continue the process of determining abortion rights in America, where are we exactly?


            The immediate issues that come to mind are whether this is the beginning of the end of a right to abortion, how does this effect Alabama's laws, and what are the political ramifications?  In short, it is a small step in the right direction which does not immediately effect any existing Alabama laws or laws proposed to regulate abortion in any state, but it has significant political ramifications for the 2008 presidential election.


            To understand these things, it is necessary to understand the court opinion.  It 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."  In testimony before the Senate Judiciary Committee, a nurse's description of the process was the partially delivered


     ". . . baby's little fingers were clasping and unclasping, and his little feet were jerking.  Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startled reaction, like a flinch, like a baby does when he thinks he is going to fall.  The doctor pulled 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."


            This type of 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 is no health of the mother exception.  Following this, Congress made extensive findings that there is no medical need for a health exception and again passed a statute which resulted in this recent court decision.  The health exception referred to is universally 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, even though it did not have a health exception, was because abortion doctors have available to them the normal dilation and evacuation procedure ("D&E").  The only difference between it and the intact D&E is that in the former, the baby is taken out in parts and is obviously killed in the process.  In the latter, the baby is almost born alive.  The law meets the undue burden standard of Casey because it does not prohibit an abortion; the abortion may be performed using the usual D&E procedure.  This decision does not overrule the Stenberg decision, because that law prohibited all D&E procedures.  The present law only prohibits abortions that meet the following criteria:


1.      There must be a vaginal delivery of a living child.


2.      Either the head or the trunk must be fully delivered.


3.      The abortionist must by an overt act kill the partially born child.


4.      The abortionist must have intentionally done the foregoing.


            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 that its application is too broad.  In this case it would mean the abortion doctor does not know what is prohibited or that he would not be able to perform the necessary procedure.  This may unconstitutionally burden the woman's choice.            


            As noted, the medical health omission was central to the abortionists' arguments.  The Court found the medical evidence uncertain and that state and federal legislators have wide discretion to pass legislation in areas of medical and scientific uncertainty.  The Court concluded no health exception was necessary under the "facial" challenge before the Court.  That is, on its face, without application or the law ever being put into use, it does not place a burden on the woman's right to choose.  There is no evidence that her health would be adversely effected. 


            However, the Court also 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.  We are all familiar with federal courts' propensity to strike down abortion laws.  This means there is still a very real chance this law will be struck down in a later case.


            The Court made a distinction essentially based on there "almost" being a life of the baby.  Although the Court said the state has an interest in protecting "the life of a fetus that may become a child," it was also reasonable for Congress to be concerned that 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 the baby up first, rather than deliver it whole.


            As noted, the step was very small.  It is significant in that it is the first step away from the abortion right, but it is only important if a subsequent step is taken.  During the 1990's when there were multiple states' efforts to pass partial-birth abortion laws, 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.


            One of the questions is whether this would effect Alabama's law.  We passed the Alabama Partial-Abortion Ban Act of 1997, Section 26-23-1,  et sequel, 1975 Code of Alabama.  It did not have a health exception.  A lawsuit was filed which resulted in a finding, based on the Stenberg case, that it was unconstitutional.  Summit Medical Associates PC v. Siegelman, 130 F.Supp.2d 1307 (M.D. Ala., 2001).  It is not possible to go back and undo that court decision on that particular statute, but in any case, that statute would still not cut constitutional muster under this recent decision.  It does not have the same exacting definition of a partial-birth abortion that would permit it to be recognized as the specific sole procedure.  Also, there is no scienter requirement, that is, the statute did not require proof that  the abortion doctor intended to take the baby's life by this particular  abortion process. 


            Additionally, there are no present Alabama legislative bills being considered which would have any constitutional success as a result of this decision.  Any such bill must be carefully prepared to anticipate a constitutional challenge.  That raises the last obvious question and that is what are the political ramifications of the decision.


            Gonzales v. Carhart was a 5-4 decision.  Justice Kennedy wrote the opinion for the Court.  Justice Kennedy has fully supported the right to abortion.  He was, however, joined by pro-life Justices Thomas and Scalia, and the two new Justices, Chief Justice Roberts and Justice Alito.  While Justice Kennedy used some very "pro-life" sounding terms in his opinion, he made it clear that the Court "assume[s] 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."  Before Thomas and Scalia could join in the opinion, they wanted to be clear they were only supporting upholding the law and said through Thomas, "I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe, has no basis in the Constitution." 


            It is also notable that although Roberts and Alito joined the majority opinion, they did not join Thomas' concurrence.  Perhaps, they did not want to show their hands so early after their confirmation, where numerous questions were asked about this issue.  That can, at least, be our hope.


            Justice Ginsberg wrote a dissenting opinion which was joined by Justices Stevens, Souter and Breyer.  They stood firmly on the abortion right court decisions.


            The reality of this is that we still remain one vote short of correcting the horrible mistake in American jurisprudence which has allowed the so-called constitutional right to an abortion.  George Bush does not have the political strength to get another conservative Justice confirmed.  The problems in his administration and the Democrat controlled Senate substantially weaken him.  If an opening comes while he is president, we must be concerned he does not put another weak vote on the court, such as Kennedy is or O'Conner was, notwithstanding they were to have been pro-life. 


            This makes the 2008 presidential elections more important than any in many terms.  This election is also particularly interesting because while, of course, every Democrat contender recognizes the right to abortion, two of the three top-tier GOP candidates are pro-choice and the third's position is suspect.  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.  There are a number of second tier GOP candidates who are pro-life.


            Abortion organizations were horrified at the decision and many pro-life organizations were ecstatic.  One must be careful in assessing response from such persons.  They are, most likely, in a fundraising mode.  The real assessment of the case must be that it reinforces some principles that have been expressed in the Roe and Casey decisions about the state having some interest in protecting life, but it does not step away from the constitutional right to abortion.  The statements in Gonzales v. Carhart are not strong enough and do not go far enough.  We must be encouraged, however, because the educational part of this process has helped more Americans recognize the personhood of the unborn child.


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