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.