Reflection on Gonzales v. Carhart (the recent Ruling on the Partial Birth Abortion Ban)

The Carhart ruling potentially moved the legality of ending the SHL’s life from outside the PW (infanticide) to inside the PW. First, the Court blurred the line between previability and postviability.

The Dissent states that “the Court blurs the line” between previability and postviability. “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 [with an “anatomical landmark”] when a particular medical procedure is performed.” (dis, p. 19)

The court further blurred the line in statements such as this:

“Moreover, Casey reaffirmed that the government may use its voice and its regulatory authority to show its profound respect for the life within the woman…The Act’s ban on abortions involving partial delivery of a living fetus furthers the Government’s objectives. Congress determined that such abortions are similar to the killing of a newborn infant. This Court has confirmed the validity of drawing boundaries to prevent practices that extinguish life and are close to actions that are condemned.” (syl, p. 5)

Second, it was implied that it is not perfectly logical for the intact D&E procedure to be banned nationwide while the standard D&E procedure remained legal.

“It is objected that the standard D&E is in some respects as brutal, if not more, than the intact D&E, so that the legislation accomplishes little. What we have already said, however, shows ample justification for the regulation. Partial-birth abortion, as defined by the Act, differs from a standard D&E because the former occurs when the fetus is partially outside the mother to the point of one of the Act’s anatomical landmarks. It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, ‘undermines the public’s perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world.’…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 proscribe both procedures. In sum, 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.'” (op, p. 30)

“The objection that the Act accomplishes little because the standard D&E is in some respects as brutal, if not more, than intact D&E, is unpersuasive. It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, undermines the public’s perception of the doctor’s appropriate role during delivery, and perverts the birth process.” (syl, p. 6)

“Today, the Court blurs that line, maintaining that ‘[t]he Act [legitimately] appl[ies] both previability and postviability because . . . a fetus is a living organism while within the womb, whether or not it is viable outside the womb.’ Ante, at 17. 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.). One wonders how long a line that saves no fetus from destruction will hold in face of the Court’s ‘moral concerns.'” (dis, p. 19)

“The Act’s ban on abortions that involve partial delivery of a living fetus furthers the Government’s objectives. No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life. Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition. Congress determined that the abortion methods it proscribed had a “disturbing similarity to the killing of a newborn infant,” … and thus it was concerned with “draw[ing] a bright line that clearly distinguishes abortion and infanticide.” …. The Court has in the past confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned. Glucksberg found reasonable the State’s “fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia.”” (op, p. 28)

Third, it may be logical to move the question of abortion’s legality into the PW’s womb based on a connection between the banned intact D&E procedure and standard D&E. Above, the Court stated, “Congress determined that the abortion methods it proscribed had a ‘disturbing similarity to the killing of a newborn infant.’ … Glucksberg found reasonable the State’s ‘fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia.'” It would be logical to change the statements to, “Congress determined that the [standard D&E] abortion methods it proscribed had a disturbing similarity to the killing of a newborn infant [in the intact D&E abortion method]. … Glucksberg found reasonable the State’s fear that permitting [abortion] will start it down the path to [involuntary abortion].” A logical progression diagram illustrating the prohibition of abortion could be [infanticide –> intact D&E –> standard D&E –> all abortion]. The location of the SHL does not matter since it is still the same SHL.

However, the question of Roe’s “undue burden” “essential holding” will keep standard D&E from being banned.

“[I]n this litigation” [Attorney General Gonzales] “does not dispute that the Act would impose an undue burden if it covered standard D&E”).” (dis, p. 19)

Consequently, in order to get around Roe’s “undue burden” holding to outlaw standard D&E, Roe must be overturned. The logic of the Court’s justification to outlaw intact D&E is capable of overturning Roe if and only if the Court finds the “undue burden” holding unconstitutional, subject to an overruling based on Carhart and the State’s interest in any SHL. This can still be done while upholding the “health exception” for the life of PWs.

With the outcome of overturning Roe, the question remains if abortion issues will return to the States to decide legality or become banned nationwide as in this ruling. The concurring opinion would render Roe and PP as invalid.

“I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution.” (co, p. 1)

Further, due to the “Commerce Clause” (co, p. 1) of the Constitution, abortion may likely become a State-by-State issue (as I understand it).

Trackbacks & Pingbacks 1

  1. From RedBlueChristian » Blog Archive » REFLECTION ON GOZALES V. CARHART (THE RECENT RULING ON THE PARTIAL BIRTH ABORTION BAN) on 01 May 2007 at 2:47 pm

    […] [This entry, cross-posted at Ales Rarus, was written by a friend of mine who prefers to be credited pseudonymously. Comments meant for him would be best left at Ales Rarus. – Eric] […]

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