NEWS YOU CAN USE

Submitted to the PLM Newsletter
December 8, 2007
Robert P. N. Shearin, M.D.

On, January 22, 1973, the United States Supreme Court rendered its decisions in Roe v. Wade and Doe v. Bolton. Those of us who gathered that Monday evening in the home of Dr. Paul Andreini, then a member of the staff of the Mayo Clinic, read those rulings and immediately recognized that Roe and Doe, taken together, legalized abortion on demand throughout all stages of pregnancy. It took the New York Times about five years to realize that and, according to recent polling date, some in our country still do not know that abortion is legal throughout pregnancy.

The “right” to abortion was thus, by judicial fiat, legalized in 1973. The means to accomplish the killing of preborn babies then expanded, from sharp dilation and curettage (D & C), to suction D & C, to saline injections into the amniotic fluid, and to a variety of other methods, including partial birth abortion.

On Wednesday, April 18, 2007, the United States Supreme Court rendered its decision in Gonzalez v. Carhart (Gonzales) which upheld the Partial Birth Abortion Ban Act of 2003 (PBABA) as passed by Congress and signed by President. In other words, one, but only one, means of killing preborn babies has now been outlawed by all three branches of our government. I hold that to be a good thing. All other abortion methods remain legal, however, and that is a terrible thing.

The decision in Gonzales was, and is still, vehemently opposed by the pro-abortion camp. For example, Louise France, in her October 7, 2007 column in the (London) Observer wrote: “…the ruling marked an unmistakable shift in favour of the rights of the unborn foetus over the rights of the woman….For the beleaguered pro choice contingent this was yet another example of how the rights of women to access safe abortion in America are being whittled away.” Ms. France goes on to quote Justice Ginsburg (“simmering with rage…”): “The court deprives women of the right to make an autonomous choice, even at the expense of their safety.”

Many pro-lifers, including this writer, consider Gonzales to be a step toward restoring a Culture of Life in America. Some informed, dedicated, and staunch members and leaders of the pro-life movement, however have criticized Gonzales.

What are we to think? Was Gonzales good or bad for babies, mothers, and, by extension, their advocates, the pro-life movement?

Perhaps I may here consider and address three of the issues that I have identified in the writings of pro-life persons who are critical of Gonzales. If my paraphrasing of the criticisms brought by members of the pro-life family is incomplete, biased, or otherwise unfair, that is not my intent—and I am open to further instruction and correction.

1. Criticism—“Gonzales does not save the life of one baby.”

In my opinion, this may or may not be true. On the one hand, since there always have been alternative means to kill preborn babies, abortionists can revert to such methods. On the other hand, the educational value of the PBABA and Gonzales, which upheld it, should not be dismissed. Although polling data, especially regarding life and death issues, should be addressed with caution, the National Right to Life Committed reports that, between 1992, when partial birth abortion was publicized by abortionist Martin Haskell, and 2006 11 years after the first PBABA was passed, the Harris poll reported support for Roe dropped from 61% to 49%.

More needs to be done, of course, but if, by news reports about PBABA and its course through the courts, just one mother considering abortion has been made more aware of the humanity of her unborn child, recognized her intimate kinship with her preborn baby, and opted for delivery, not destruction, then at least one baby may have been or yet will be saved.

2. Criticism—“The Gonzales ruling explains how to legally kill, by dilating the cervix and dismembering the baby.”

Critics of Gonzales may or may not understand that the Supreme Court has, since Roe and Doe (wrongly in my opinion) used the phrase “vague and overbroad” to void any number of protective pro-life statutes. The 108th Congress recognized this and, therefore, used clear and realistic language in framing the PBABA. This Court, in ruling to uphold PBABA, had to use the language in the law before it to distinguish the prohibited method of killing preborn babies from other means of killing preborn babies such as the barbaric dismemberment abortion, which has not (yet) been outlawed by Congress.

3. Criticism—“The Court used frank and shocking language in describing the procedure that it agreed with Congress should be banned and the dismemberment abortion procedure that was not before it in this case.”

As noted above, this is correct. Whether the use of the correct, yet frank, language of dismemberment abortions enshrines that barbarity as forever protected, as some pro-lifers who are critics of Gonzales claim, or was required simply to define what the court in this specific case was and was not doing, is subject to discussion.

I find significant encouragement, however, taking the Gonzales ruling as a whole, that Justice Kennedy, writing for the majority held, at:

1. “…A central premise of Casey’s joint opinion—that the government has a legitimate, substantial interest in preserving and promoting fetal life—would be repudiated were the Court not to affirm the judgments below.”

2. (b) “The Act is not unconstitutionally vague on its face. It satisfies both requirements of the void-for-vagueness doctrine.”

3. (a) “…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.

…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 State’s interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion. The objection (Ed. Note: by the pro-abortion side in this case) that the Act accomplishes little because the standard D&E is in some respects as brutal, if not more, than intact D&E (Ed. Note: abortion by dismemberment) is unpersuasive.(emphasis added).

In summary, I believe Gonzales upheld a statute sought by, and important to, the Pro-Life Movement. Although favorable, this ruling was limited by the case before it. In the language of the ruling, however, there is now a clear and compelling tension between the Court’s respect for “the life within the woman” and its description of the brutality of dismemberment abortions which, as the Court and pro-lifers note, remains legal. I pray that a future Congress and Court, instructed by Gonzales, will take the steps necessary to authenticate the Court’s recognition of the value of “protecting innocent human life from a brutal and inhumane procedure…”

In closing, let us consider these questions:

1. Do we want to live in a country where Partial Birth Abortion is legal?

2. Do we want to live in a country where abortion by dismembering a living preborn child is legal?

The first question was answered, I believe, by Gonzales v. Carhart. The second question sets the next, but not the last, challenge squarely before us. I pray that God gives us the prudence to set the proper course to restore moral, historical, and legal protections for all innocent life and the strength to stay the course.