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Partial Birth Abortion Ends…Even as We Await Constitutional Restoration

Many were heartened by headlines this spring that announced the U.S. Supreme Court’s ruling against the notoriously gruesome procedure known as partial birth abortion. The case was Gonzales v. Carhart

  • Louis Sette,
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Many were heartened by headlines this spring that announced the U.S. Supreme Court’s ruling against the notoriously gruesome procedure known as partial birth abortion. The case was Gonzales v. Carhart,1 decided April 18. The ruling effectively limited the scope of the so-called “right to choose” by eliminating this heinous method of killing children poised for birth.2

But a closer look at the decision clearly shows that a practical, functional disregard for the Constitution of the United States remains securely institutionalized in the court. This disregard exists even among those jurists whom many would applaud because they ruled against the partial birth procedure. Ironically, it was this very disregard of the Constitution that, in the first place, served as the means for the creation of federal abortion rights some thirty-four years ago and ultimately put the partial birth case on the Supreme Court’s docket.

The decision also shows the justices’ misplaced pride in their institution, which works to undermine the integrity of the court and subverts the Constitution. Supreme Court rulings, routinely made on the basis of prior decisions, which are given far greater weight by the justices than the Constitution itself, systematically bury the Constitution under shovel-loads of confusion. This surely convinces most Americans that they could never know the meaning of the constitutional document, which has been rendered obscure by the court’s practice and must seem to most deeply perplexing and mysterious.

This convincing dissuasion against inquiry into the constitutional text by everyday citizens is a tragedy. For this dissuasion is what permitted the right to choose to arise without the people having any ability to understand how it really happened, to see for themselves the outrageous legal deception, even while they could see its horrendous results. Americans do not know the Constitution, for they have been led to believe they are incapable of understanding it.

Americans can now do no more than stare blankly, like blind men, as the Constitution is dismembered, piecemeal, before their unseeing eyes. Yes, even so dismembered as to threaten the rights of Christ’s church and pulpit to be free from government encroachment and censure. Indeed, this has already occurred but is generally unacknowledged.3

But before we follow all these threads, we must first look at the Gonzales case, the one at hand. Here is what happened.

As a result of the growing opposition to partial birth abortion, some thirty states banned the procedure. Nebraska was one of them, and its ban was challenged. In 2000, the Supreme Court ruled the Nebraska law unconstitutional.4 In response, Congress approved a bill to ban partial birth abortions countrywide, and President George W. Bush signed it. The law took effect November 5, 2003.

The new law was written to overcome the court’s objections to the Nebraska ban. Those objections had been as follows: the ban placed an “undue burden” on a woman’s right to an abortion;5 it was not precise enough in setting forth the various types of partial birth abortion procedures that were prohibited;6 and it did not include an exception so that partial birth abortions would be permitted to protect the health of the mother.7

Of course, a legal challenge ensued. Four doctors convinced a federal trial court in Nebraska that the congressional ban was unconstitutional, just as the Nebraska ban had been found unconstitutional a few years earlier. Later, the U.S. Court of Appeals agreed. The ban then went to the Supreme Court for the make or break decision.

Reading the decision isn’t easy. Near the outset, the court summarized the testimony that had been given in the trial court about how partial birth abortions are actually performed. The court quoted some of the testimony given by doctors and a nurse. The testimony was chilling, not only for what the so-called “procedures” actually involved, but also for the clinical coldness of the doctors’ language. The descriptions below pertain to a baby partially removed from his mother, feet first.8

  • Holding “the shoulders [of the child] with the fingers of the left hand, the surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down, along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger. The surgeon then forces the scissors into the base of the skull …” The surgeon then “introduces a suction catheter into this hole and evacuates the skull contents.”
  • Sometimes the doctor will squeeze the skull after it has been pierced “so that enough brain tissue exudes to allow the head to pass through.”
  • “[O]thers [among the doctors who testified] continue to pull the fetus out of the woman until it disarticulates at the neck, in effect decapitating it.”
  • By another procedural variant, the doctor “crushes a fetus’ skull … to ensure the fetus is dead before it is removed.”
  • The nurse testified, without clinical circumspection, about a partial birth abortion she had witnessed. “[T]he baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck scissors in the back of his head, and the baby’s arms jerked out, like a startle, like a flinch …” Then the doctor “sucked the baby’s brains out. Now the baby went completely limp.”

The case even horrified the dissenting justices, but not about what you might think. They were horrified that banning these procedures, ghastly as they might be, would threaten their brave, new view of women and family by limiting abortion rights even to this limited extent. Writing for the dissent, Justice Ginsburg9 made matters plain.10

  • A woman must have “control over her own destiny.”
  • Regarding women “as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status” are opinions that “are no longer consistent with our understanding of the family.”
  • Women have the right “to participate equally in the economic and social life of the nation.”
  • Women were not to be constrained by “ancient notions about women’s place in the family … ideas that have long since been discredited.”11

In the end, the court upheld the ban, but barely. The vote was 5 to 4. Three critical findings cleared the way. First, the court found the ban was clear enough for abortionists to know exactly what kinds of procedures were prohibited. Second, the court decided that the ban did not impose an undue burden on a woman’s right to an abortion. Third, the health exception, though limited to protecting the life of the mother, was sufficient. Joining Justice Kennedy, who wrote the majority opinion, were Justices Alito, Roberts, Thomas, and Scalia. Justices Ginsburg, Breyer, Souter, and Stevens made up the dissenting minority.

Which provisions of the Constitution did the majority and dissenting justices cite to support their conclusions? None. In some thirty-three pages of discussions and arguments, neither side recited a single, specific provision of the constitutional text as a basis for its ruling.

Considering this was a constitutional case, does it not seem strange that the Constitution was not cited even once? To most Americans, it must seem strange indeed, but not to judges and lawyers. You see, for the most part, the Constitution has been effectively subordinated to Supreme Court decisions. This is the result of that misguided, judicial pride, mentioned earlier, that the justices have generally held for their institution. Over time, they have elevated their institution above the Constitution it is supposed to serve.

The Constitution means, they believe, what they say it means. It’s their prior decisions, which jurists and lawyers call case precedents,12 by which virtually all constitutional questions are decided. Case by case, the Constitution has been effectively supplanted. Of course, this is illegitimate. Nevertheless, using the constitutional text itself is now considered a quaint idea. Lawyers do not go into the Supreme Court expecting to win by citing the Constitution. They cite the court’s prior cases.

The sole time a specific constitutional provision was referenced in the case, it was not used as a basis for decision. Justice Scalia recognized that the ban might be unconstitutional under the commerce clause. “I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”13

It is not surprising the commerce clause was so ignored. During President Franklin Roosevelt’s administration, the Supreme Court perverted the meaning of the clause to serve as a basis for centralizing New Deal legislation. In truth, this clause gives the federal government control only over cross-border trade among the states so that they do not impose tariffs on trade from one state to another as they once did. The perverse expansion of the clause pretends to permit the federal government to regulate the production and provision of all goods and services countrywide that even “affect” interstate commerce. Thus, Scalia wondered if the court would have agreed, if asked, that the clause could serve even as the basis for the federal government regulating abortions.14 But all nineteen lawyers in the case15 seem to have assumed it would, considering how badly the meaning of the clause has been perverted.

What does all this mean in practice? Just this: Decisional precedents serve as a buffet of rulings that the justices can peruse, pick, and choose among to justify their conclusions. Here’s the tally from the partial birth abortion decision. The majority cited thirty federal court cases it relied on, the minority nineteen. The justices even used a group of the same eight cases as support for their diametrically opposed positions.

How could a citizen determine which side was correct? He would have to study forty-one federal court decisions, reconcile all the differences that may be among them, then carefully trace the majority’s and minority’s respective arguments to be sure each properly applied the decisions on which they relied. Do you see the problem? By substituting a myriad of precedents for the constitutional document, the court has effectively stolen the Constitution from Americans and reserved it for themselves and lawyer elites. No wonder Americans do not bother to read the document for themselves.

Well, at least the partial birth abortion matter has been favorably settled, right? Unfortunately, the system of relying on case precedents means matters are never settled. All that’s needed to change things is another mix of justices asserting another mix of precedents or finding new meaning in the old ones. If just one of the majority’s justices in the Gonzales case leaves the court, the one who replaces him may have a different opinion about the topic. If a new challenge to the congressional ban against partial birth abortion were to be made, then the new mix of judges could use even the same basic precedents to overturn the Gonzales case. Or, more simply, a new Congress could repeal the ban. Either way, children would be killed again in partial birth abortions.

Constitutionally speaking, what should be the situation regarding abortion law? There should be no pretense that a federal abortion right exists. The right is said to arise from a general right of privacy. The Supreme Court asserted this right of privacy in Roe v. Wade16 as a kind of summary of the Bill of Rights. However, the Bill of Rights simply prevents the federal government from encroaching on specific rights that the people held at the time the Constitution was ratified. The Bill is protective, not creative, in nature. Therefore, it could not and did not create any rights, let alone a novel right of privacy.

Nineteen years after Roe, the court ruled17 that abortion rights also rested on the “liberty” provision in the Fourteenth Amendment. But in the very case that made this claim, the court recognized that “a literal reading of the clause might suggest that it governs only the procedures by which a state may deprive persons of liberty.”18 In other words, the amendment merely referenced court procedures for incarcerating people. Long ago the court saw the opportunity to read the liberty clause categorically in order to suit its purposes, to say it stands for an abstract group of rights “fundamental” to its notion of liberty. It was just a matter of the court stating, over time, what rights were in that group. In doing so, the court could reorder American society. Not surprisingly, it found abortion within the group of fundamental rights. Of course, this is just a transparent manipulation of the constitutional text.

So, if Roe v. Wade were overturned, as it should be, what would abortion rights look like in America? Abortion would not be outlawed. Instead, abortion laws would be left to the states. The laws among them would vary. The federal government would have no role in the matter. Overall, the number of abortions would be reduced. This is the result the Constitution requires.19

What, then, is there to do? Work to restore the Constitution, daunting as that seems, by increasing constitutional understanding. Home- and Christian schools would be good places to start. Or, just read the surprisingly short document with fresh eyes, pushing out of your mind all you have been told about it. If the document were more widely understood and respected among the people, then citizens could at least intelligently complain to their elected officials when the officials or judges deviate from it. As things stand now, many cannot even recognize when public office holders go constitutionally astray.

Christians are especially well suited to this task. We are trained to study and obey the Bible, a written, authoritative, and controlling document. The parallel to the Constitution in the civil realm is obvious. Moreover, we are obliged to insist on constitutional faithfulness among office holders. The principle to be distilled from Romans 13 is respect for civil authority. By God’s providence, we are not in the position of the early Christians in Rome. God has delivered His people, in this time and place, from the unfettered power of civil magistrates. He has put federal office holders under constitutional authority themselves. When we empower them, by our votes or passivity, to strike at the constitutional authority that should restrain them, we not only disregard God’s gracious provision for us, we effectively make the federal office holders our agents for rebellion.

The Constitution is a gift, despite whatever imperfections one might find in it. God’s people and His church would surely miss it if it should ever be lost. It would be too late to get to know it then.

1. Gonzales v. Carhart, 127 S. Ct. 1610. The official U.S. site was not yet available at the time of this writing.

2. The court said it did not have any statistics regarding the number of partial birth abortions performed annually. Gonzales, 1621.

3. Dare any pastor today, for fear of losing his church’s tax-exempt status, preach that voting for a specific, named candidate would be incompatible with our Christian responsibilities? Also, take a look at all those paved, striped, and posted parking spots in the church lot reserved for the handicapped and the long ramp leading to the door as required by federal law. These requirements have nothing to do with building or fire safety. How many dollars did the government thereby divert from the uses the church otherwise would have made of them? Far worse may be coming.

4. The case was Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597 (2000).

5. “Undue burden” is a subjective judgment.

6. When a statute is not precise enough in describing what acts it makes criminal, it is said to be “void for vagueness.”

7. The health exception was limited to protecting the life of the mother. This was narrower than the health exception that the court had approved in a companion case to Roe v. Wade. At that time, the court defined health to include even psychological difficulties. This rendered the exception so expansive as to be virtually without limit.

8. Gonzales, 1621–1623.

9. This was none other than Ruth Bader Ginsburg, once a professor at Rutgers Law School from which this writer graduated while managing to avoid her classes.

10. Gonzales, 1641, 1649.

11. Justice Ginsburg reached back to an 1873 Illinois case to make sure she was understood about what those “ancient notions” included. The judge in that case, not anticipating political correctness, had written that “[M]an is, or should be, woman’s protector and defender.”

12. Case “precedents” are incompatible with constitutional decision making. The constitutional text must always be the basis for each decision. If it is not, then the “precedents” become the supreme law of the land.

13. Gonzales, 1640.

14. If the commerce clause issue had been briefed, would Scalia have ruled the ban unconstitutional because the clause did not support it? That would have given the opponents of the ban a fifth and controlling vote and allowed partial birth abortions to continue. Scalia may just have been showing that he was on the ball. In truth, the ban was unconstitutional considering it was premised on the commerce clause. The clause has nothing to do with abortion. Yet, the ban slid by.

15. The Gonzales case had been consolidated with Gonzales v. Planned Parenthood Foundation of America, Inc., a case from California that raised the same issues. Other interested parties also attached themselves to the joined cases. This must have made a crowded courtroom on the day of oral arguments.

16. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973).

17. Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992).

18. Ibid., 846.

19. Some “pro-lifers” may not want to hear this. If the abortion issue were returned to the states, as it should, it could be fought out in them.  Diffusion of government power helps, not hurts, the pro-life cause.

  • Louis Sette

Louis Sette is a retired lawyer and business man who lives in Forest, Va., with his wife and two sons who attend nearby Liberty University. He is a member of Grace Orthodox Presbyrerian Church. He can be reached at [email protected]

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