The Politics And Religion Of Abortion And The Supreme Court

It is hard to separate politics and religion from yesterday's U.S. Supreme Court ruling upholding a federal ban on so-called partial-birth abortions. A 5-4 vote in Gonzales v. Carhart reverses the outcome reached by the Court seven years ago in a case involving a very similar Nebraska statute criminalizing partial-birth abortion. In 2000 the Court in Stenberg v. Carhart found the Nebraska statute unconstitutional under Roe v. Wade and its progeny, in part, because it failed to include a health exception. It had seemed settled law that government may promote but not endanger a woman's health when it seeks to regulate methods of abortion under the health exception. "Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman's health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman's reproductive choices," Justice Ruth Bader Ginsberg wrote in her dissenting opinion.

So had the medical community's understanding of what constitutes a "partial-birth" changed over the last seven years since its ruling in Stenberg? Or was the difference in the Court's make-up the difference in this case? You cannot overlook the absence of Justice Sandra Day O'Connor, the first woman to sit on the Court, who joined the 5-member majority holding a similar partial-birth ban unconstitutional in Stenberg. And you cannot overlook the make-up of this new majority. It is comprised entirely of men, including Chief Justice John Roberts, Antonin Scalia, Clarence Thomas, Anthony Kennedy and the Court's newest member, Samuel Alito. All five men are Catholics. The Catholic Church's strong opposition to abortion is hard to overlook as not playing a factor in the Court's latest ruling. The four dissenting justices includes two Protestants, John Paul Stevens and David Souter, and two Jews, Stephen Breyer and Ruth Bader Ginsberg.

Not surprisingly, Chief Justice Roberts and Justice Alito both faced intense questioning during their recent confirmation hearings about their position on abortion. Their past records gave us every indication they both held strong views opposing abortion. Both, however, sought to reassure senators who might be inclined to vote against them on the abortion issue alone to cinch their respective places on the high court. Roberts assured senators the law on a woman's constitutional right to an abortion was "settled law." "When a decision is challenged and reaffirmed, it increases its value," Alito told senators when questioned about abortion. "The more times it happens, the more respect it has." If 'settled' means that it is a precedent that is entitled to respect . . . then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis," Alito assured the senators.

Were Roberts and Alito true to their word? It all depends on who you're asking. In Justice Ginsberg's mind, the majority in Gonzalez overturned its long-established precedent for requiring the health exception. "Though today's opinion does not go so far as to discard
Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of the rule of law and the principles of stare decisis. Congress imposed a ban despite our clear prior holdings that the State cannot proscribe an abortion procedure," Ginsberg opined.

Justice Kennedy, who wrote the majority opinion, offers little in the way of explanation for setting aside the precedent. In fact, his opinion reads as if the Court is being true to its prior precedents. "Stenberg has been interpreted to leave no margin of error for legislatures to act in the face of medical uncertainty," Kennedy laments. "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 proscription," he offers. "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."

The absurdity of the partial-birth law under scrutiny is the manner in which it attempts to split hairs in regulating abortion procedures. On the one hand, you have one procedure referred to as dilation and extraction where the physician inserts a vacuum instrument into a pregnant woman's cervix to extract a live fetus. This procedure, "dismemberment D&E", tears the fetus apart limb by limb within the cervix. That procedure remains legal. The federal law, however, makes it illegal to perform a procedure known as intact dilation and extraction, or intact D&E. This latter procedure differs from the former in that the live fetus is partially removed from the woman's cervix to complete the abortion procedure. This latter procedure is preferred by some practitioners because it causes less trauma to the woman's cervix than the other procedure, thereby making it a safer procedure, particularly for women with certain health conditions. The proponents of the partial-birth law claim the intact D&E procedure is "more gruesome" and "less humane."

As Justice Ginsberg explained, the expert testimony at trial supported the conclusion of the trial court judge that the health of the woman was a major reason for utilizing the intact D&E procedure. The purpose of the partial-birth ban is supposed to be based upon the government's legitimate interest in protecting the life of a fetus that may become a child. But as Justice Ginsberg observed, "The law saves not a single fetus from destruction." "And surely the statute was not designed to protect the lives or health of pregnant women," she added. "In short, the Court upholds a law that, while doing nothing to preserv[e] . . . fetal life, bars a woman from choosing intact D&E although her doctor reasonably believes [that procedure] will best protect [her]," she said.

As far as Ginsberg is concerned, the majority is substituting its own "moral judgment" about abortion in place of allowing the woman to make her own health care judgments. "Our obligation is to define the liberty of all, not to mandate our own moral code," Ginsberg reminded the majority quoting from Casey. And quoting from Lawrence v. Texas, the decision which struck down laws criminalizing same-sex sodomy, Ginsberg wrote, "Though for many persons objections to homosexual conduct] are not trivial concerns but profound and deep convictions accepted as ethical and moral principles, the power of the State may not be used to enforce these views on the whole society through operation of the criminal law."

Unfortunately, it appears the majority in Gonzales is more concerned about pursuing a moral agenda with an ultimate aim of overturning the long-standing constitutional right women have held to control their reproductive destiny. Instead of relying on expert testimony like the trial court did in reaching its conclusion the law was unconstitutional, the Court relied on congressional findings which were heavily biased in favor of persons morally opposed to abortion. As Ginsberg noted, none of the physicians whose testimony was concluded in the record had ever performed the abortion procedure in question and some of them had never performed any abortion procedure. "Congress arbitrarily relied upon the opinions of doctors who claimed to have no (or very little) recent and relevant experience with surgical dissenting
abortions, and disregarded the views of doctors who had significant and relevant experience with those procedures," according to the trial court. Summarizing her view of the majority's thinking, Ginsberg wrote, "This way of thinking reflects ancient notions about women's place in the family and under the Constitution ideas that have long since been discredited."

As a consequence of the Gonzales decision, you can bet abortion is going to be an even bigger issue in next year's presidential race and, if there are any new vacancies on the Court, any nominee will be dead on arrival in the Democratic-controlled Senate unless his/her record of support for Roe v. Wade and its progeny are well-documented. It's a sure bet there will be many more lawsuits. It is important to note that the Court's ruling in Gonzales was limited to a facial attack of the partial-birth ban statute. The majority made it clear the statute could still be attacked on constitutional grounds on an as-applied basis. The decision is also certain to invite more and more attempts to regulate abortion rights at the state level.

The reaction from anti-abortion legislators here in Indiana was predictable. "I think that was a good ruling," Sen. Pat Miller told the Star. "I think it is much more risky for a woman to have a partial-birth abortion than to have a baby,'' she added. Keep in mind Sen. Miller is a registered nurse by occupation. Does she honestly believe there are never any circumstances where a partial-birth abortion would be better for a woman's health than carrying a baby to full-term? Sen. Jeff Drozda said, "I think it's a very significant ruling." "This does help pave the way for states to begin to look at other legislation." "If states are looking to begin to restrict abortion . . . this does allow us to go back and look at what was considered an undue burden.'' Before his election to the Indiana Senate, Drozda made a living as a paid lobbyist for Indiana Right to Life.