According to the Associated Press, the U.S. Supreme Court today issued its opinion in Gonzales v Carhart. The Court has upheld the U.S. ban on partial birth abortion as constitutional.
Here is the Court's opinion, including the concurring and dissenting opinions, for download: Download Gonzales.pdf
Copies of briefs, petitions, and other related documents can be found on findlaw.com here.
Updated April 21:
Yesterday, the American Bar Association published an online article about the case and its impact, titled "Ruling Changes Abortion Debate," written by John Gibeaut. In that article, Gibeaut wrote that while the majority of the Court insisted that their opinon was a narrow one, limited to one method of late term abortion, it was the first time in more than 30 years that the Supreme Court has upheld a law prohibiting an abortion procedure. He wrote that both sides of the abortion issue agree "that Carhart will forever change the complexion of abortion litigation."
While the case may impact future decisions, the only issue presently in line to be considered by the Supreme Court involves a state law requiring a doctor to go into detail about the things that can occur to the patient and to her fetus before the woman can agree to an abortion.
Here is my own view of the decision:
In reading through the decision, it seemed significant to me that the Court's references to the details of an abortion procedure, and mention of the fact that most doctors performing a late term abortion do not inform their patients of what happens to the fetus during the abortion. That portion could be applied to the future decision related to the disclosures that physicians can be required to make before performing such a procedure. This past week's decision may offer some insight into how the Court
will view legislation requiring such disclosures, and the Court's
eventual ruling regarding disclosures will undoubtedly provide further
insight into the future direction the present majority sees for the
Supreme Court.
Also, for all of the dissent's emphasis on a woman's right to choose, and objection that the majority was treating women according to a 19th century or early 20th century view of women as needing to be protected from their own choices, there is a serious question of whether it is the court and its detailed description, or rather doctors who do not disclose those details when they obtain consent to such procedures, who are adopting the more antiquated view of women as creatures in need of protection from their own decisions.
Nowadays, pro life advocates are as likely to be women as to be men -- if not more likely to be women than men. And one would rarely, if ever, see an appeal to a 19th century role of women in the family made the basis for protecting the life of a child. The same pro-life issues are discussed in connection with the disabled and the elderly, and it makes no difference to the ethics of pro life decisions whether the person whose life is inconvenienced is a man or a woman who may be called upon to care for the life of another person. Accordingly, it seemed to me that the majority opinion was in line with present day values, that consider both the rights of the woman and the impact on her life as well as the rights of the unborn child in deciding what the State can constitutionally restrict.
Gonzales v Carhart is clear that it does not overturn Roe v Wade, and that it does not affect the legality of the 85% to 90% of U.S. abortions that occur by the usual methods for the first trimester of pregnancy. Nor does it affect the most common procedure for a second trimester pregnancy. However, the opinion goes into some detail about abortion methods, including those that are not prohibited by 18 U.S.C. section 1531 (the Act that prohibits partial birth abortion. For example, the description of a late term D&E abortion, a procedure still allowed under 18 U.S.C. section 1531, mentions this:
“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.”
The “partial birth abortion” that has been banned is a variation on that standard D&E, sometimes called an “intact D&E” or "D&X." In an intact D&E (partial birth abortion), the doctor pulls the baby out of the uterus alive, vaginally, until the head is lodged in the cervix. The doctor then forces scissors into the base of the skull, introduces a suction catheter, and evacuates the skull contents before fully removing the baby from the uterus.
The Court quoted an abortion doctor’s clinical description of the procedure and a description from a nurse who watched the method performed on a 26-1/2 week old baby. The nurse described how the doctor rotated the baby and removed everything but his head. “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.” Then, after the doctor fully removed the baby, he “threw the baby in a pan, along with the placenta and the instruments he had just used.”
Other, more recent, methods of intact D&E were also described by the Court, including a method of crushing the skull, decapitating the baby, or squeezing the skull to allow enough brain tissue to come out so that the head can pass through the cervix.
The descriptions of abortion, and of doctors’ efforts to avoid having the baby be born alive, may be expected to be read not only by the legal community but also by present day and future law students, as well as by legislators, and legal professionals. That may help to ensure that future discussion of the law and ethics concerning abortion will be based upon a full understanding of the impact on the unborn child as well as the implications for the woman. That part of the opinion, at least, is likely to come up again when the Court decides a future issue regarding disclosures to be made to women before they consent to such procedures.
The Court paid considerable attention to an earlier case, Planned Parenthood of Southeastern Pa. V. Casey, 505 U.S. 833 (1992), in which a premise central to a conclusion affirming Roe v Wade, but without rigid boundary lines drawn according to which trimester of pregnancy is involved, was that “the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Casey struck a balance, the Court said, and the Court then proceeded to apply that balance to the federal prohibition on intact D&E.
The Supreme Court mentioned Congressional concerns in enacting the prohibition. Those included the medical, legal and ethical duties of doctors to preserve and promote life. In prohibiting intact D&E, the Court found that the Government undoubtedly has a legitimate interest in maintaining high standards of professional conduct in the practice of medicine. Applying the 3 premises of Casey, including the State’s interest in protecting the life of the fetus, the Gonzales Court stated:
“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.”
The Court also stated that “No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life.” Nonetheless, Congress could conclude that intact D&E implicates additional ethical and moral concerns and justifies a prohibition.
In the part of the decision mentioned by the dissent as indicative of outmoded thinking about women, the majority discussed the bond between a mother and child, the difficult moral decision involved in a woman’s decision to have an abortion, and the fact that many women come to regret their abortion. The Court expressed concern that “In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. . . . This is likely the case with the abortion procedures here in issue.”
The Court held that the State has a legitimate interest in this lack of information concerning the way the unborn child will be killed. “The State has an interest in ensuring so grave a choice is well informed.” The Court commented upon evidence that most doctors administering a D&E or intact D&E do not inform their patients of what happens to the baby during the procedure. “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 Court also questioned whether a challenge to the Act as unconstitutional on its face (a “facial” challenge) should have been entertained. The alternative means of challenging a new law is an as-applied challenge, bringing to the Court a specific instance in which the law is thought to have violated the constitutional rights of a specific person in the way it was actually applied. Because there are safe alternative means to accomplish late term abortions, which are not prohibited by the law in question, the Court questioned whether it would ever be necessary to perform an intact D&E to protect a woman’s health. However, a woman whose life is in danger already has an exception written into the Act, so that an intact D&E is still legal if a woman’s life would be in danger through any other means of abortion. 18 U.S.C. section 1531(a). By indicating that the challenge should have been brought based upon a specific incident -- a specific woman whose health would have been injured if she could not have the specific procedure here prohibited -- the Court may change the way future challenges to constitutionality are filed when abortion laws are in question.
Justices Thomas, in addition to joining Justice Kennedy’s opinion, wrote a concurring opinion in which Justice Scalia joined. Those two justices added to Justice Kennedy’s reasoning a view that Casey and Roe v Wade have “no basis in the Constitution.” However, as only 2 of the 9 justices on the Supreme Court indicated that they would vote to overturn Roe v Wade at this time, there is also an indication that abortion in the first trimester, and abortion where a woman's life is in danger, will remain constitutionally protected under the view of the Supreme Court's majority for the foreseeable future.
Justice Ginsburg, with 3 other justices joining her, wrote the dissenting opinion. The dissent stated that, for the first time since Roe v Wade, the Supreme Court “blesses a prohibition with no exception safeguarding a woman’s health.” The dissent points to evidence that an intact D&E may be safer for a woman than a traditional D&E.
However, if safer, it seems to me all the more compelling that the intact D&E is offensive to a cultural value of life in that the intact D&E procedure remained uncommon although safer for the woman. The most likely reason for this is that, to health care professionals and pregnant women, the intact D&E procedure seemed too similar to ending the life of an infant that has been born alive.
The dissent then goes through a discussion of a view of women as “the center of home and family life . . . that precluded full and independent legal status under the Constitution,” which views “are no longer consistent with our understanding of the family, the individual, or the Constitution.” The dissent argued that a woman’s right to an abortion is necessary to her ability “to enjoy equal citizenship stature.” The dissent argued that the Act’s lack of an exception to protect a woman’s health, where an intact D&E might be considered safer for the woman than another form of D&E, made the Act unconstitutional.
However, the majority opinion had said nothing about a woman’s place in the family. No such argument has a significant place in the Catholic pro-life position today, which turns on the value of the life of the child, whether kept by the mother or placed for adoption.
The dissent contends that the majority opinion’s reference to physicians’ failure to inform patients, the number of women who regret having had an abortion, and the risk of psychological impact, “reflects ancient notions about women’s place in the family and under the Constitution.” The court then cites older cases from the late 19th and early 20th century about the role of women in the workplace and about women’s “talents, capacities or preferences.” But there is nothing in the majority opinion to suggest that 19th century ideas about women had anything to do with the majority decision.
Clearly, U.S. voters have voted pro-life in recent years in large enough numbers to have this majority on the Supreme Court appointed by the U.S President and approved by the U.S. Senate, and that voting has been based on present day ideas and not ideas of a century ago. The majority opinion was certainly welcome news for anyone with a pro-life view.
