Gonzales v. Carhart; a review

On April 18, 2007, the Supreme Court of the United States issued an opinion in the highly disputed partial-birth abortion case, Gonzales v. Carhart. The case dealt with the constitutionality of Congress’ latest statute restricting the use of partial birth abortion. In an incremental move away from its prior opinions, the Supreme Court upheld the statute banning partial-birth abortion in all circumstances except those necessary to save the life of the mother.

This case was based upon a so-called “facial” challenge to the statute. The plaintiffs argued that the statute was too vague and would ban other types of abortions in such a manner as to seriously limit women’s access to abortion. They also claimed that the statute directly imposed an undue burden on the so-called women’s right to abortion. In addition, they argued that the statute was over broad and fatally in contradiction of prior Supreme Court precedent in that it lacked an exception for the “health of the mother.”

Cases involving abortion have involved some of the greatest distortion of American law since the odd gymnastics undertaken to justify slavery two centuries ago. American law is still suffering today from both the theoretical and practical changes in the law made in order to accommodate the attempt to justify first slavery, and later racism. But embracing evil does that. When we want something that is actually bad but we refuse to admit it is bad, and instead try to rationalize it and create reasons why it is still acceptable, it distorts everything else. Unwillingness to eliminate slavery was a major cause of the United States’ rejection of traditional Protestant Christian understanding of natural law theory and its embrace instead of positivism and pragmatism. The unwillingness of the United States to deal with racism also created and maintained similar philosophical and practical problems with law. Today abortion poses the same threat to our legal system. It causes people to create inconsistencies in substantive and procedural aspects of the law, to distort reality, and to avoid arguing about the real issues.

While the outcome in Carhart is a positive outcome, it nevertheless does not really go far enough and does not escape the gravitational pull of the distortion that abortion causes to the time/space continuum of justice and law. It seems that escaping Roe v. Wade is almost like trying to escape a black hole. It remains to be seen if the Court can develop enough velocity to get away from its prior errors prior to the makeup of the Court being changed back to a more pro-abortion bent.

Justice Kennedy delivered the majority opinion for the Court. It was a 5-4 decision with Justices Kennedy, Roberts, Alito, Thomas, and Scalia voting to uphold the law, and Ginsburg, Stevens, Souter and Breyer dissenting in an opinion written by Justice Ginsburg. There was also an extremely short concurrence written by Justice Thomas with Justice Scalia joining in it, essentially saying that they believe that the Court’s abortion jurisprudence including Casey and Roe has “no basis in the Constitution.” While the case is a victory of sorts for those who are opposed to abortion, it is somewhat disturbing that Justices Roberts and Alito as well as Kennedy are unwilling to come to the same conclusion offered by Scalia and Thomas. What I would like to see from the Court is a simple opinion stating that the offspring of human beings are human beings and entitled to the respect due human beings at all stages of development. As a result, unborn human beings like those further along in development have a right not to be killed with malice of forethought and without justification or excuse. As a result, any reasonable regulation on abortion would be constitutional and the states’ practices in not limiting abortion would effectively be unconstitutional and on an equal protection basis since there is no reason for allowing the intentional termination of human beings at an early stage of development other than to save the life of another human being. In that way, Roe and Casey would be overturned and the absence of a right to abortion in the Constitution would not only be clear, but the presence of a fundamental right to life in all of jurisprudence would finally obtain the recognition it has so long wanted. But just as with slavery, jurisprudence is always distorted when one wants to pick and choose which human beings are entitled to treatment as human beings. It is much simpler and safer to treat them all essentially the same way.

Justice Kennedy’s opinion engaged in a fairly extensive review of the various types of abortion and the comments about them in the record. He noted that the Gonzales case was distinguishable from the prior Stenberg case in which Nebraska’s prior attempt to ban partial-birth abortion was overruled because it contained no protection for the life of the mother. After explaining the trial and Court of Appeal opinions in Carhart, Kennedy sets out to explain why the statute in question is not invalid. He notes that “the act punishes ‘knowingly performing’ a partial-birth abortion.” And then, contrary to the tradition of almost all courts discussing statutes limiting abortion, he actually parses the statute fairly, explaining what it actually means and concluding that the statute is not fatally vague or over broad. Kennedy notes, “The act does not restrict an abortion procedure involving the delivery of an expired fetus. The act, furthermore, is inapplicable to abortions that do not involve vaginal delivery.” He also notes that the act contains specific descriptions of anatomical landmarks so that it is simple to distinguish banned partial-birth abortion from every other type of abortion technique. There is no legitimate argument, according to Kennedy, that anyone should be confused about what this act really bans and what it does not. The act also requires an overt act to kill the baby. This is another safeguard for doctors that prevents them from being wrongly charged with a partial-birth abortion when that wasn’t really what they were undertaking. What Kennedy does not discuss is the elephant in the room. The elephant in the room in the partial-birth abortion case is the simple fact that the way a partial-birth abortion technique works, it is just as simple for a viable fetus to be delivered alive. In fact, it really is simpler. That is the reason why a partial-birth abortion is never necessary for the health of the mother. If the baby is too small to be viable, it can be removed through other techniques without any serious additional risk to the mother. If the baby is viable, it can be delivered alive and attempting to kill it during delivery does not make the procedure safer, but rather less so. This is completely ignored by the dissent that goes into all of the reasons why other types of abortion are less safe. And the dissent completely ignores the reality that delivering the baby alive is safer than any of the abortion methods or partial-birth abortion. The Supreme Court happily has never said that the so-called right to abortion involves the right to a dead baby. There is no reason why a baby that can be delivered alive can or should be killed by a physician. The woman may not want to raise the baby or be able to, but in that instance there are plenty of parents in the United States willing to adopt babies. If a baby can be partial-birth aborted, there is no reason why it cannot be born alive. But as I say, the Court fails to discuss this fact. Even now the Court is unwilling to directly address the simple realities of the case perhaps because of political correctness or the danger of looking politicized or foolish.

Another evidence of the Court’s reticence to face up to all of the realities of abortion is that Justice Kennedy’s opinion still does not clearly explain that the unborn baby human being is, in fact, a human being. He does say, “The act does apply both pre-viability and post-viability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb.” It still puzzles me that everyone wants to use the Latin word for baby—fetus—to discuss unborn babies. It also seems strange to me that we want to refer to human beings in the womb as “life” rather than referring to them as human beings. I suppose part of this is to be delicate with the feelings of one’s opponents. But those opponents are in no way delicate or careful with those who have differing sentiments. It is true that arguments on political topics can be overly inflammatory. For example, the writings of William Lloyd Garrison in favor of abolishing slavery probably made the abolition of slavery more difficult because of the inflammatory nature. Nevertheless, one must face the reality of the thing in order to make good decisions about it. Referring to living unborn human beings as “potential life” or even “life” is still ignoring the real nature of the child. Doing so will distort our understanding of what we’re really talking about and is likely to continue to distort the making of public policy or the providing of justice.

Justice Kennedy also happily re-establishes contact with the Court’s normal jurisprudence about challenges to statutes. He correctly identifies the doctrine behind void for vagueness challenges: as generally stated, “the void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kennedy asserts that the statute in the Gonzales case is intelligible to reasonable people. In his opinion, Kennedy properly notes that when vagueness does not clearly appear in the statute, the statute is normally entitled to the benefit of the doubt. The Court will be willing to consider an “as applied” challenge to a statute that shows why the statute is being unconstitutionally applied or interpreted in specific cases, but generally the Court does not speculate about how the statute might be misapplied or might be misunderstood in remote hypothetical situations. This is a happy change from other cases involving abortion in which the courts have bent over backwards to claim that there could be remote possibilities that someone might possibly misunderstand a statute regulating abortion rather than waiting for an actual misunderstanding to occur. Kennedy restores a happy balance by looking at the fact that the statute is meaningful and saying that if some abortionist really is prosecuted for doing another kind of abortion because the statute actually proves to be vague, he can then bring an “as applied” challenge. Until that time, the statute should be upheld. Obviously it is highly unlikely that such an “as applied” case will ever occur. Every prosecutor and every abortionist knows precisely what is banned by the Gonzales case. All of the attempts to void it for vagueness are simply argumentative techniques used by lawyers to try to maintain an absolute carte blanche where abortion is concerned.

It would have been nice if Kennedy had been able to overrule the prior Stenberg decision and say that the prior Nebraska ban on partial-birth abortion should have been upheld. But instead, he carefully distinguishes Carhart from Stenberg noting the major differences in the statute that make this statute much more clear and easy to understand. Kennedy even applies the actual canons of constitutional interpretation. He mentions the “canon of constitutional avoidance.” Kennedy says, “The canon of constitutional avoidance, finally, extinguishes any lingering doubt as to whether the act covers the prototypical D&E procedure (another type of abortion). The elementary rule is that every reasonable construction must be resorted to in order to save a statute from unconstitutionality… It is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion. The Court at times employed an antagonistic ‘canon of construction under which in cases involving abortion, a permissible reading of the statute was to be avoided at all cost.’…by contrast (to Stenberg), interpreting the act so that it does not prohibit standard D and E as the most reasonable reading and understanding of its terms.” Three cheers for Justice Kennedy in applying the normal rule of canon of constitutional avoidance evenly. Abortion cases should not be entitled to the extraordinary treatment they have received.

Kennedy also discusses the findings by the Congress. He notes that there is evidence supporting their findings and allows them to be given the deference normally given to congressional findings and congressional intent. “Congress stated as follows, ‘implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life.’ The act expresses respect for the dignity of human life. Congress was concerned, furthermore, with the effects on the medical community and on its reputation caused by the practice of partial-birth abortion. The findings in the act explain: ‘partial-birth abortion…confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of the child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life.’ …There can be no doubt the government has an interest in protecting the integrity and ethics of the medical profession. …Congress determined that the abortion methods it prescribed had a ‘disturbing similarity to the killing of a newborn infant,’ …and thus it was concerned with ‘drawing a bright line that clearly distinguishes abortion and infanticide.’” Kennedy believes that protecting the medical profession by drawing a bright line against infanticide and the congressional interest in protecting the life of the “fetus” are legitimate reasons behind the statute.

Not everything Kennedy says in the opinion is good. Not only are there problems with his omissions, but he does refer to the unborn baby as “the fetus that may become a child.” He also says “the state has an interest in insuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.” Again, this begs the question in the wrong way by implying that a human being at an appropriate form for its stage of development is somehow not in a “human form.” Quite to the contrary, unborn babies simply look like unborn babies are supposed to look at their appropriate stage of development. They are in the human form. It’s just a human form we’re not as familiar with seeing because it is usually hidden within the womb rather than easily available to our sight. But now with ultrasound and other imaging techniques, there is simply no excuse for maintaining the cloak of mystery over the unborn child that was present in pre-scientific eras.

Kennedy does have some insightful moments in his opinion. In other court opinions in which partial-birth abortion statutes have been found to be both overly broad and vague, the courts have failed to note that such findings are by implication inconsistent. Kennedy does not miss this though. He says, “There would be a flaw in this Court’s logic, and an irony in its jurisprudence, were we first to conclude a ban on both D&E and intact D&E was overbroad, and then to say it is irrational to ban only intact D&E because that does not prescribe both procedures. In some, we reject the contention that the congressional purpose of the act was to place a substantial obstacle in the path of a woman seeking an abortion.” Next in the opinion, Kennedy deals with the health exception question. He allows for the Congress’ findings as credible.

Again, Kennedy wisely follows the Court’s own jurisprudence in non-abortion cases. “The Court’s precedence instructs that the act can survive this facial attack. The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty…this tradition rule is consistent with Casey, which confirms the state’s interest in promoting respect for human life in all stages in the pregnancy. Physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures. The law need not give abortion doctors unfettered choice in the course of their medical practice. Nor should it elevate their status above other physicians in the medical community.” Three cheers for this uniform application of the law instead of giving abortion providers special privileges. Kennedy continues, “A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the prescription. This is too exacting a standard to impose on the legislative power, exercised in this instance under the commerce clause, to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the state is altogether barred from imposing reasonable regulations. The act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives.” In other words, Kennedy takes a very sensible practical approach to the problem. Without being insulting to abortion providers by saying that they are willing to be disingenuous in order to keep performing any kind of abortion they wish, he indicates that even when there is some dissent in the medical community, the Congress is entitled to make findings about what they think is really necessary for health or safety or not. In a way, it would have been better if he had addressed the elephant in the room and noted that partial-birth abortions are never necessary because a living baby that is too large to be removed by other means can be more easily born alive than killed in mid birth. But I suppose that would not be fitting the decorum of a Supreme Court justice. Nevertheless, Kennedy’s opinion is still attacked by the dissent. The dissent, as we noted earlier, goes through all of the reasons why they believe partial-birth abortions might be safer than other abortion techniques. In doing so, the dissent also ignores the elephant in the room—the fact that a live birth is yet safer.

In abortion cases, the whole issue of “health” has been a misnomer. When people think of the health of the mother, they normally think that the mother is going to have some kind of injury or disease or syndrome as the result of giving birth to this baby. While all of that would be within the possible meaning of the term health, the way pro-abortion judges have used “health” is to describe a feeling of psychological well-being. In other words, if a woman thinks she will have apprehension or anxiety or stress because her baby is alive and living with adoptive parents, that is all of the “health risk” needed for the abortionist to make sure she has a dead child rather than a happy living one. That sort of a definition of health is extremely problematic. Yet the abortion industry and pro-abortion judges insist on this strange health idea.

In the last portion of the opinion, Kennedy focuses, as we noted before, on the fact that if there really are problems, the proper means of attacking the statute is an “as applied” challenge. He finally winds up the opinion by saying, “Respondents have not demonstrated that the act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman’s right to abortion based on its over breadth or lack of a health exception. For these reasons the judgments of the Court of Appeals for the eighth and ninth circuits are reversed.” The abortion problem is still not solved but at least the Gonzales case is one more incremental step in the right direction. Lately there has been some dissention among organizations opposed to abortion as to whether or not incrementalism is appropriate. But it should be noted that incrementalism is being successful in some ways and has been successful historically. Slavery was eliminated in the United Kingdom incrementally. It was impossible to end the slave trade until the slave trade was first limited by making it easier for privateers and naval vessels to seize slavers. It was then possible to eliminate slavery when the slave trade had been eliminated for some period of time. Economic interest in favor of slavery had to be cut back and trimmed until they no longer held leverage over the legislature. In America, we were able to limit slavery quickly through the Civil War but at a terrible price in blood. It took us far longer to eliminate the horrible problem of racial discrimination and in fact, we are still suffering in some ways from that terrible blight on the human soul. We have made incremental progress toward the elimination of discrimination. I would like to see abortion ended completely by a Supreme Court opinion finding a right to life, or by an amendment to the Constitution clarifying a right to life for all human beings. If that is not politically possible, we need to continue to limit abortions, pressure abortion providers, and educate people so that abortion loses its economic, political, and demographic support enough to make a constitutional amendment possible. We also need to have bloggers, law schools, and other forms of education that affect lawyers, judges, and decision makers discuss this matter and educate people on how abortion really should be viewed and how it can be eliminated. Unless the proper canons of constitutional and statutory interpretation are taught, and unless people are willing to apply a proper natural law jurisprudence, it is unlikely that any set of judges or lawyers produced by the majority of law schools will argue or write the opinion necessary to end abortion in the United States. This is part of the importance of schools like Trinity.