Thursday, April 19, 2007

Gonzales v. Carhart

The Congress of the United States (no, not this Congress currently seated, but a prior incarnation) has written a law to condemn partial-birth abortion, the President of the United States has signed it into law, and now, as of yesterday, the Supreme Court of the United States has affirmed the law as Constitutional. Hooray! Yet I offer a tempered "Hooray!" The decision in Gonzales v. Carhart will not save a single life. It is valuable simply for the promise it holds out for future decisions. Other abortion methods remain for the murder of any baby whose mother has determined to murder it (as, according to the Unted States Supreme Court, 1.3 million women do in this country alone each year). I would encourage you to read the actual opinion (found here) for yourself. But first, a primer on how to read such things. The first section is the actual law. It gives a synoptic narrative of the case's history, then prescribes what the Court has "held." The remaining sections are dicta, opinions given by the various justices. These comments may influence the future decisions of the court and may influence the deliberations of other courts, but are not binding law. Gonzales contains three such opinions. The "Opinion of the Court" section (so stated in a header on each page of this section of the document) is the Majority Opinion. Portions of this opinion belong to the category of actual law, those that represent the ratio decidendi, or reason for the decision. Any aside comments in the Majority Opinion are dicta. Telling the difference between the two is a subjective pursuit. Following the Majority Opinion is a brief "Concurring" opinion by Justices Thomas and Scalia (and allow me to offer my "Amen" to their sentiments). Finally, Ginsburg wrote a "Dissenting" opinion for herself, Stevens, Souter, and Breyer. Although I completely disagree with the conclusions that Ginsburg draws, I want to highlight some items of fact upon which I do agree with her:

  1. The primary purpose of abortion is to advance a notion of the proper role of women in society. Quoting Ginsburg:
    Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.
    This is the goal of pro-abortionists, and I credit Ginsburg for saying so rather than hiding behind disingenuous arguments about privacy, rape, incest, or medical risk for women. Many women consider their own babies to be the primary enemies to their career aspirations or life plans, so with all the tender mercies of Don Corleone, they eliminate them. And this happens at least 1.3 million times in the United States every year. Surely it is a grievous sin to murder one's own child to further one's own pecuniary interests.
  2. This debate is not so much about whether people may commit infanticide in the United States as it is about where people may commit infanticide in the United States. Above the cervix, infanticide is legal.
    Instead of drawing the line at viability, the Court refers to Congress’ purpose to differentiate “abortion and infanticide” based not on whether a fetus can survive outside the womb, but on where a fetus is anatomically located when a particular medical procedure is performed.
    Indeed, the effect of the law is even more arcane than that: Infanticide is legal in the United States even below the cervix, so long as the doctor murdering the baby outside the uterus intended to commit the murder inside the uterus when he began the procedure.
  3. The legal procedure (D&E) may well be more gruesome and offensive than the now-illegal procedure (D&X, or as the Court has termed it, "intact D&E"). After all, the whole thing becomes legal if you rip apart the baby's body rather than bringing it out in one piece.
    As another reason for upholding the ban, the Court emphasizes that the Act does not proscribe the nonintact D&E procedure. See ante, at 34. But why not, one might ask. Nonintact D&E could equally be characterized as “brutal,” ante, at 26, involving as it does “tear[ing] [a fetus] apart” and “ripp[ing] off” its limbs, ante, at 4, 6. “[T]he notion that either of these two equally gruesome procedures . . . is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational.” Stenberg, 530 U. S., at 946–947 (STEVENS, J., concurring).
    Yes, Justice Ginsburg. That's why all abortion ought to be illegal.
  4. Finally, I agree with Ginsburg that the only rationality for this ruling is as a partial step toward the overthrow of Roe v. Wade.
    One wonders how long a line that saves no fetus from destruction will hold in face of the Court’s “moral concerns.” See supra, at 15; cf. ante, at 16 (noting that “[i]n this litigation” the Attorney General “does not dispute that the Act would impose an undue burden if it covered standard D&E”). The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Ante, at 14, 24, 25, 31, 33. A fetus is described as an “unborn child,” and as a “baby,” ante, at 3, 8; second-trimester, previability abortions are referred to as “late-term,” ante, at 26; and the reasoned medical judgments of highly trained doctors are dismissed as “preferences” motivated by “mere convenience,” ante, at 3, 37. Instead of the heightened scrutiny we have previously applied, the Court determines that a “rational” ground is enough to uphold the Act, ante, at 28, 37. And, most troubling, Casey’s principles, confirming the continuing vitality of “the essential holding of Roe,” are merely “assume[d]” for the moment, ante, at 15, 31, rather than “retained” or “reaffirmed,” Casey, 505 U. S., at 846. . . . . . . . . In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court—and with increasing comprehension of its centrality to women’s lives.
    Ginsburg seems peeved that the majority will not simply acknowledge their overall goal and matter-of-factly overturn Roe. Part of me agrees with her. But if such methods are the manner by which 1.3 million American children's lives are saved annually, I'm willing to live with the compromise. My preferred outcome would be that the USSC would overturn Roe and force abortionists to try to gain legislative or popular support for baby-murder. If we can only cut off the dog's tail one inch at a time, I'll live with it. Of course, I'm assuming that the majority will indeed eventually have the guts to take this momentum to its ultimate conclusion.


Anonymous said...


we are so close...very overturning roe v. wade. that's why it's so important to get a conservatives in the white house and in congress in the next few years. i believe that we are close to getting this atrocity called abortion stopped. i just wonder if the nation has the heart to stop it.


ps. what's going on with google? i have to register every time i want to leave a comment, or else post anonymously.

kws said...


My joy over the ruling is tempered by the knowledge that a judge on the highest court in the greatest country is more concerned about the title of the doctor than she is for human life. May God help us all.

I can't help but be reminded of the words of the Apostle Paul in Romans 1:22, "professing to be wise, they became fools..."

I am saddened by the fact that Justice Ginsburg is in a position to offer such outrageous opinions at taxpayer expense because of the actions of two Southern Baptists. President Carter appointed her as a Federal Appellate Judge in 1980, and President Clinton nominated her as an associate justice to the Supreme Court during his first administration. Now, these two have turned their attention to fixing what ails Baptists.

Bart Barber said...


I'm sorry, but I don't know how to address your Google issues.


Ditto on your observations.

Greg Tomlin said...

Seems to me that Congress fails to recognize a simple fact: The only difference on the law books between murder and abortion is the possession of a medical license by the perpetrator.

Interestingly, Harry Reid (D-NEV) today said he was outraged that the Court had upheld this infringement on peoples' constitutional rights. But, wait, Harry. You voted for the ban on partial birth abortion. So which is it? Are you abhorred at the Court's decision or the practice of murdering little ones?

I don't think Harry knows about the existence of PraiseGodBarebones, but perhaps we should forward him a link so he can answer. Hmm?


Bart Barber said...

Take that, Harry!

Luke said...

Excellent post. I was doing some reading yesterday and read another "Baptist" post condemning the vote. I was just beside myself. But reading this hear today has encouraged me. Thank you brother.


Luke said...

I'm sorry, "hear" should be "here".

Strider said...

I am late to the party but I just wanted to add an important thought- indeed this has become a pet peeve for me. If and when the court over rules Roe v Wade the Church will have acheived exactly nothing.

Bart said, "And this happens at least 1.3 million times in the United States every year. Surely it is a grievous sin to murder one's own child to further one's own pecuniary interests."

Until the church has fought the spiritual battle and has been the salt and light in peoples lives we will not have acheived anything. The courts can make it harder for a woman to get an abortion but only the Church can bring the gospel to bear so that women wont WANT an abortion. I look forward to the day when fewer children die but in the end the law will change no one's hearts. Elect conservatives if you want to but please let us be much more concerned about the gospel than about civil law.

Luke said...

Strider said, "If and when the court over rules Roe v Wade the Church will have acheived exactly nothing."

I am sure glad God didn't take that attitude when He gave Moses the Ten Commandments.

Strider said, "I look forward to the day when fewer children die but in the end the law will change no one's hearts."

Excellent point. Human laws do not change hearts and yet, Proverbs 29:2 "When the righteous are in authority, the people rejoice: but when the wicked beareth rule, the people mourn."

I'll vote for righteousness ANY election day.


Bart Barber said...


Welcome to Praisegod Barebones. I'm glad to know that the blog has been an encouragement to you.

Bart Barber said...


You correctly observe that a law against abortion does nothing to improve the spiritual condition of the mother.

But it does a great deal to improve the condition of the child. And therefore it does a great deal to improve the spiritual condition of all of those who come to the child's defense.

I follow this same rationale when it comes to all forms of child abuse. If I see someone abusing a child, I cannot undo the sin of that abusive parent. I would love to be able to counsel the parent and bring them from darkness into the light. However, if I stand idly by and do nothing but give that counsel—nothing to aid the suffering child—then the abusive parent is no longer the only sinner. Now I am guilty of standing by and watching it happen.

On the other hand, if my church intervenes, contacts the authorities, and puts an end to the abuse, our actions do not harm the spiritual condition of the abusive parent (indeed, the consequences may prove redemptive), but we have done great good for the child and have spiritually improved ourselves by doing the right thing.

If the abusive parent remains unconverted, I would agree that the church has not accomplished everything that it wishes to accomplish, but it is almost offensive to suggest that the church has accomplished nothing.

Bart Barber said...

To all: I'm headed to Austin to attend a missions conference. I'll be offline for the majority of the weekend.

Strider said...

Bart- I need to apologize for my previous comment. I admitted that it was a pet peeve but I did not explain. The thing about pet peeves is you see them at work when that is not necessarily so. I read your post with a prejudice that you do not deserve and for that I apologize.

The point I was trying to make is that the church for too long has fought the abortion issue solely on the political front. We live in a democracy and have the responsibility to influence our society. For too many (note this is a personal conversation between me and my right-wing father) we have only talked about the political solution. If the government outlaws abortion then the church wins, if it doesn't the church loses. I am calling us to amend our language here. If the government outlaws abortion then our society wins, if it doesn't then this is irrelevant to the Kingdom of God which marches on with or without our society.
The biggest problem that I see is that of confused authority. Too many assume that there is nothing the Church can do about this other than support the government to do the right thing. We are forgetting the weapons of our warfare. Abortion is a spiritual battle. Women are quite unnaturally choosing to kill their children. They are bound up in spiritual lies that only the church can break down. We must fulfill our role as God's people and attack this spiritual stronghold in the lives of our daughters.
Nothing in your post indicated that you would not agree with this assessment and so I apologize for bringing this to the discussion as some kind of correction when in all probability no correction is needed here. It is a discussion with my family that I have brought here. Sorry.

Bart Barber said...

Indeed, Strider, we do agree. In fact, even if abortion is illegal, apart from spiritual intervention many women will no doubt pursue the same objective illegally.