Before understanding why the Supreme Court ruling to uphold legislation is still a lost, let me give some background on the Congressional Legislation that was upheld:
Description of the Law
FOXNews reported on the television today the results of the supreme court case, Gonzales v. Carhart, regarding the Partial Birth Abortion Ban Act of 2003, passed by Congress and signed by President Bush. The act describes partial-birth abortion as:
“an abortion in which a physician delivers an unborn child’s body until only the head remains inside the womb, punctures the back of the child’s skull with a Sharp instrument, and sucks the child’s brains out before completing delivery of the dead infant — is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.“
The act also justifies the prohibition centering on the lack of evidence that the procedure is safer than any alternative method citing the increase risk of,
“among other things: an increase in a woman’s risk of suffering from cervical incompetence, a result of cervical dilation making it difficult or impossible for a woman to successfully carry a subsequent pregnancy to term; an increased risk of uterine rupture, abruption, amniotic fluid embolus, and trauma to the uterus as a result of converting the child to a footling breech position, a procedure which, according to a leading obstetrics textbook, “there are very few, if any, indications for . . . other than for delivery of a second twin”; and a risk of lacerations and secondary hemorrhaging due to the doctor blindly forcing a sharp instrument into the base of the unborn child’s skull while he or she is lodged in the birth canal, an act which could result in severe bleeding, brings with it the threat of shock, and could ultimately result in maternal death.”
The act also goes into details about the baby, noting,
“The vast majority of babies killed during partial-birth abortions are alive until the end of the procedure. It is a medical fact, however, that unborn infants at this stage can feel pain when subjected to painful stimuli and that their perception of this pain is even more intense than that of newborn infants and older children when subjected to the same stimuli. Thus, during a partial-birth abortion procedure, the child will fully experience the pain associated with piercing his or her skull and sucking out his or her brain.”
The Supreme Court Opinion
The majority 5-4 opinion states, “We conclude the Act should be sustained against the objections lodged by the broad, facial attack brought against it.” A FoxNews article observes, “The decision pitted the court’s conservatives against its liberals, with President Bush’s two appointees, Chief Justice John Roberts and Justice Samuel Alito, siding with the majority. Justices Clarence Thomas and Antonin Scalia also were in the majority.”
This was a much different outcome from an earlier law in 2000, passed by congress which was not upheld by the Supreme Court in Stenborg vs Carhart. FOXNews writer notes that, “In 2000, the court with key differences in its membership struck down a state ban on partial-birth abortions.”
Still a Loss
This is ultimately not a win for abortion activists based on several observations.
First, Chief Justice Kennedy did not support prohibiting abortion from the earlier 2000 Nebraskan legislation. The FOXNews article states that “Kennedy’s dissent in 2000 was so strong that few court watchers expected him to take a different view of the current case.”
Second, the current majority opinion maintains the same position the court has always held:
“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. We now apply its standard to the cases at bar.”
(GONZALES v. CARHART Opinion of the Court 15-16)
Third, the opinion of the court, upon review of the District Court’s decision, states:
“The District Court in Carhart concluded the Act was unconstitutional for two reasons. First, it determined the Act was unconstitutional because it lacked an exception allowing the procedure where necessary for the health ofthe mother. 331 F. Supp. 2d, at 1004–1030. Second, the District Court found the Act deficient because it covered not merely intact D&E but also certain other D&Es. Id., at 1030–1037.”
(GONZALES v. CARHART Opinion of the Court 19)
In other words, the previous opinion ruled the previous law was too general, prohibiting more than partial-birth abortion procedure, called ‘Intact D&E’, developed by Dr. Martin Haskell and presented in 1992 (GONZALES v. CARHART Opinion of the Court 14).
Fourth, the majority court opinion concludes, “that the Act is not void for vagueness, does not impose an undue burden from any overbreadth, and is not invalid on its face.” Thus, the reason why this law was upheld was the law specifically banned a particularly gruesome type of procedure that did not “pose undue burden” upon a woman’s right to choose abortion.
In conclusion, this is a win for abortion activists. Ultimately, the Supreme Court has made clear its position that abortion should not be banned. The majority ruling essentially bans a certain method of execution. The supreme court ruling by analogy affirmed the death penalty but forbid death by firing squad but for babies. The only comfort to pro-life activists is that now babies will die less painfully- without getting their brains sucked out.