From LifeDate - Summer 2007.

Supreme Court Upholds Partial-Birth Abortion Ban

The U.S. Supreme Court’s 5-4 decision in Gonzales v. Carhart was not a major surprise. But like many others, I wondered whether an opinion written by "swing" Justice Anthony Kennedy would be a solid pro-life decision or a weak, equivocal ruling that leaves us hanging on the basic constitutional issues.

But a careful reading of the opinion reveals that Gonzales is a solid work of jurisprudence that not only protects babies from partial-birth abortion but also lays the groundwork for future pro-life victories.

The federal courts commonly use a three-tier standard to analyze constitutional rights cases. Cases involving "preferred" rights such as speech and press are classed as "upper tier," which means governmental agencies can infringe upon those rights only if they can demonstrate a compelling state interest that cannot be achieved by less restrictive means. "Middle tier" rights, such as the right to be free from gender discrimination, can be infringed only upon a showing that the regulation bears a substantial relationship to an important governmental interest. "Lower tier" rights, such as property rights, can be infringed whenever the government can demonstrate that the restriction bears a reasonable relationship to a legitimate governmental interest.

Although this three-tier analysis has no grounding in the Constitution, it is crucial to understand how the courts adjudicate constitutional rights. It is far easier to prove that a law bears a reasonable relationship to a legitimate state purpose, than to prove that the state has a compelling interest that cannot be achieved by less restrictive means. To give abortion constitutional protection and insulate the procedure from future attack, Justice Blackmun in the 1973 Roe v. Wade decision classified abortion as a fundamental "upper tier" right. He then arbitrarily declared that the state’s interest in the life of the child becomes compelling only at the point of viability (when the child is capable of surviving outside the womb), which he equated with the beginning of the third trimester of pregnancy.

The most important holding of Gonzales is that "the government has a legitimate and substantial interest in preserving and promoting fetal life." Abortion is now a middle-tier rather than an upper-tier right; consequently, restrictions on abortion that might previously have been struck down are now more likely to be upheld. And in the same sentence Justice Kennedy has blurred, if not utterly swept away, the "viability" test for determining whether the state can protect fetal life. Regulations that protect the unborn child prior to viability are now more likely to be upheld.

Justice Kennedy quotes medical testimony that graphically describes the horror of partial-birth abortion: While the head is still inside the uterus, "the baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out, like a startle reaction . . . The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out. Now the baby went completely limp. . . ." (If you cannot read this without recoiling with revulsion, I congratulate you on being human.)

Kennedy quoted this graphic description to show the public what partial-birth abortion really is, and also to demonstrate that Congress correctly determined that a "moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion . . . is a gruesome and inhumane procedure that is never medically necessary and should be prohibited." The disturbing effect of partial-birth abortion on medical personnel, and the guilt it engenders in those who must live with its consequences, are additional state interests that justify the prohibition.

Justice Ginsberg’s dissent chides the majority for calling abortion-providers "abortion doctors" instead of using their proper medical titles (She would have liked my terminology even less!). She rehashes the tired pro-abortion rhetoric about women’s rights with no concern whatsoever for baby girls, complains that the distinction between viability and pre-viability has been blurred, and claims "Nonintact D&E could equally be characterized as ‘brutal.’" Unwittingly, she has just made our case for banning nonintact D&E and other forms of abortion as well.

Justices Thomas and Scalia joined the majority opinion but also wrote a concurring opinion that went further. While the majority reduced abortion to a middle-tier right, Thomas and Scalia rightly remind us that "the Court’s abortion jurisprudence . . . has no basis in the Constitution." They also recognize a problem that many may have missed—the regulation of abortion should be a state function, not a federal function, and Congress wrongly stretched the Commerce Clause as a basis for restricting partial-birth abortion. Justices Thomas and Scalia observe that the parties had not raised the Commerce Clause issue and the lower courts had not considered it. In this way, they deftly preserved the issue for future litigation.

To God be the glory! With His help, our efforts to cleanse our land of the plague of abortion seem to be bearing fruit!

The first "official" piece of writing I did as executive director of Lutherans For Life was a negative response to President Clinton vetoing a Congressional ban on Partial-Birth Abortion in April 1996. The good news, eleven years later, is that the U. S. Supreme Court upheld as constitutional a Congressional ban on Partial-Birth Abortion. The bad news? It’s eleven years later!

In 1996 we thought it absurd that this country could even be debating the legality of sucking the brains out of a partially delivered baby. Now we have an eleven-year legacy of absurdity in getting to the point of declaring that no one has the constitutional right to do such a thing. I hope everyone sees what this says about the degradation of our society. I hope no one sees how far we’ve come, but rather how far we have yet to go.

But getting back to the good news—a line has been drawn. I remember listening to Joni Eareckson Tada give a speech in which she said, "Drawing lines is necessary, not just because it is the right thing to do, but because drawing lines is at stake." This line is significant in the fact that it was drawn, not because it will negatively affect the abortion industry or save the lives of many babies. There is some hope in the language of Justice Kennedy’s opinion, as quoted in the New York Times (April 18, 2007), that "the government may use its voice and its regulatory authority to show its profound respect for life within the woman."