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

The Carhart ruling brought aspects of abortion to light. These include (a) the regretful nature in choosing an abortion, (b) the desire of the State for doctors to disclose the nature of the abortion procedure, and (c) devaluing human life among (d) other things.

The Court acknowledged that the “difficult and painful moral decision” (op, p. 28) might cause “some women … to regret their choice to abort the infant they once created and sustained.”

“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.” (op, p. 29)

Also, the Court mentioned, “[the] lack of information concerning the way in which the fetus will be killed … is of legitimate concern to the State.”

“In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. See, e.g., Nat. Abortion Federation, 330 F. Supp. 2d, at 466, n. 22 (“Most of [the plaintiffs’] experts acknowledged that they do not describe to their patients what [the D&E and intact D&E] procedures entail in clear and precise terms”); see also id., at 479…. The State has an interest in ensuring so grave a choice is well informed.” (op, p. 29)

Aborting a SHL is not the same as removing a kidney. If one removes a kidney, the one to whom the kidney belongs most likely lives; if one kills the SHL, that’s the end of the SHL’s life.

One should not think abortion is the only issue at hand in this case.

“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)

“The Act proscribes a method of abortion in which a fetus is killed just inches before completion of the birth process. 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.'” (op, p. 26)

“Human life is acknowledged as continuous from pregnancy. ‘the [State has] interest in promoting respect for human life at all stages in the pregnancy.'” (op, p. 33)

There are some additional Court findings that are worth noting include the following. Previability is said to be an unwarranted consideration.

“To implement its holding, Casey rejected both Roe’s rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortion unwarranted.” (op, p. 15)

It is possible for Roe to be overturned.

“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)

Medical doctors should maintain integrity and ethics.

“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 a child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life.’ Congressional Findings (14)(J), ibid.

‘The Act’s stated purposes are protecting innocent human life from a brutal and inhumane procedure and protecting the medical community’s ethics and reputation. The government undoubtedly ‘has an interest in protecting the integrity and ethics of the medical profession.’ Washington v. Glucksberg, 521 U. S. 702, 731″ (syl, p. 5)

“There can be no doubt the government “has an interest in protecting the integrity and ethics of the medical profession.” … (indicating the State has “legitimate concern for maintaining high standards of professional conduct” in the practice of medicine). Under our precedents it is clear the State has a significant role to play in regulating the medical profession. Casey reaffirmed these governmental objectives. The government may use its voice and its regulatory authority to show its profound respect for the life within the woman.”

The main contention of the Dissent was that there were medical reasons to keep intact D&E legal and that medical finding of Congress were false and medical finding from judicial evidence were true. (dis, pp. 8-13) The Court held that “… partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.” (syl, p. 2) These and other Court stated facts stand in opposition to each other; I have no further argument regarding this issue since both sides seem credible on their face.

It has been said that neither pro-life nor pro-choice proponents should be moved much by this ruling. However, in analyzing this case, it has given me some hope that Roe may potentially be overturned.

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