Court Allows Abortion Restriction

by Jay Johansen
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Health exception

For the first time ever, the Supreme Court has allowed a law to restrict abortion without a loophole for the "health of the mother". The decision is Gonzales v. Carhart, 2007.

In the past, almost every restriction on abortion has been shot down by the courts on some technicality or other. When they permitted a restriction, they insisted that it must include an exception that allowed the abortion when "necessary for the health of the mother". But such an exception creates a huge loophole.The court defines "health" as including not just physical health, but also psychological, emotional, and "social" health. They further say that the determination of whether the woman's health is threatened is to be made solely by the abortionist and the woman herself. So if, in a woman's personal opinion that cannot be challenged by any outside evidence, having a baby would cause her stress or be a financial burden or interfere with her social life -- all real examples given in court decisions, not my hypotheticals -- then no law may prevent her from getting an abortion.

The law in question bans Partial Birth Abortion and explicitly says that it does not include such a health exception. It includes a "findings" section that summarizes evidence Congress examined and concludes that there is no case where some other procedure would not be equally safe for the mother. (Congress often includes such "findings" in a law to explain why they wrote the law the way they did, as an aid to judges in applying it.) The abortionists challenged these findings with their own experts. They said that, as there were experts on both sides of the question, the findings were invalid.

The court made the startlingly rational conclusion that when conflicting expert testimony is given, Congress has the right and the responsibility to come to reasonable conclusions. The position of the abortionists was that if people who oppose a law produce experts who say that the law is somehow irrational or unfair, that no amount of testimony from people who support the law is sufficient to rebut this. Congress and the courts must conclude that expert opinion is divided and therefore the law cannot be passed. The court recognized that if it adopted this standard, no law could stand. Surely people who opposed it could always come up with some expert who could find flaws.

Vague and overbroad

Another key point of attack was that the law was vague, and so an abortionist could not be sure what was and was not permitted. Some abortionists refer to Partial Birth Abortion as "intact D&E" because it in some ways resembles D&E. Congress insisted that this law did not prohibit "standard" D&E. But the opponents of the law said that abortionists might be afraid to perform a D&E out of fear that the law could be interpreted to ban that also.

The court went back to the text of the law: It prohibits abortions in which the abortionist "(A)deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B)performs the overt act, other than completion of delivery, that kills the partially delivered living fetus".

The court wondered how much more specific the law could be. It specifies that the fetus must be alive when the abortionist begins the steps listed, which would exclude D&E along with most other forms of abortion, where the unborn is killed while completely inside the womb. It gives precise "anatomical landmarks" for how far the unborn must be removed before the law applies. It states that the abortionist must perform an "overt act" to kill him. How could there possibly be any confusion about what is and what is not legal under this law?

Narrow and irrational

The law bans Partial Birth Abortion on the grounds that it is cruel and brutal. The abortionists argued that this was irrational. They "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". (Standard D&E involves cutting or tearing the arms and legs off the uborn baby and then removing him from the womb piece by piece after he has bled to death.)

As a pro-life activist, I only wish abortionists would make this argument in public debate rather than limiting it to court arguments. Why don't they go on TV and explain how abortion methods that are still legal and which they routinely use are even more painful, vicious, and brutal than the method that has been banned? That would help their public relations!

The court noted some irony in comparing the abortionists' "vagueness" argument to their "irrationality" argument. First they say that the law should be struck down because it could be interpreted to also ban D&E. Then a few pages later they say that the law should be struck down because it doesn't ban D&E.

Statutory construction

Summarizing many of the objetions to this law, the court noticed that the opponents of the law repeatedly tried to put the worst possible interpretation on every thing it said, and then use that interpretation to attack it. The judge who wrote the decision observes that, "The elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." That is, if the words of a law could be interpreted in two different ways, one of those interpretations resulting in a permissible, constitutionally-valid law; and the other resulting in an unconstitutional law, that the court will interpret the law the first way. He then wrily notes, "It is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion. The Court at times employed an antagonistic canon of construction under which in cases involving abortion, a permissible reading of a statute [was] to be avoided at all costs.


Many pro-lifers have said that this decision accomplishes little. It will not protect any baby from being aborted; it just requires the abortionist to use a different method. As the method in question is relatively rare -- a few thousand per year out of the million-plus total abortions, a tiny fraction of 1% -- abortionists clearly have plenty of other options. Indeed, as the campaign to ban PBA has stretched over many years, these pro-lifers have argued that others have wasted a huge amount of time and energy on PBA. They say that we should have devoted all this energy to trying to ban all abortions, not one rare method.

But pro-abortion people have fought this tooth and nail. If it was so unimportant, why did the other side put so much time, money, and political capital into it?

I think the people who call it trivial have missed several important points.

First, it was, ultimately, a winnable fight. (As is clearly demonstrated by the fact that we won.) I would love to see a law that would ban all or almost all abortions. But the political reality today is that such a law would never pass Congress, and if somehow miraculously it did, the courts would promptly strike it down. We could keep trying, of course, but when you suffer defeat after defeat, it demoralizes your own troops and leads the politicians to conclude that you have little popular support. A smart strategy is to pick winnable fights. If a new law prevents just a few abortions, saves just a few lives, isn't that better than nothing? To each life saved, it is everything. Once you win one, go on to the next, building momentum. It has been said, "Nothing succeeds like success."

Second, by picking a subject where our side has wide public support, it helps to frame the public relations debate. Pro-lifers have been badly hurt in the past when pro-choicers have managed to focus the debate on circumstances where most Americans find abortion acceptable, like rape and deformed children. Then we look like the extremists. But when Partial Birth Abortion is explained, people overwhelmingly agree it should be illegal. By dragging this fight on for years, the abortionists won a short-term victory: the legal right to kill more babies today. But it has done them long-term damage, as Americans have come to see them as actively promoting something barbaric. Now they look like the extremists. And as much as the media collaborated with abortionists in trying to cover up what abortion really is, in the PBA debate pro-life spokesmen frequently had the opportunity to explain what it is in the newspapers and on TV. The public heard exactly what abortion really is. This was very bad for the pro-abortionists.

Finally, the court decision sets precedents. In this case, the court has now established that we can ban a particular abortion method, that there are limits to the "undue burden" standard, that a health exception is not always required.

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21 Apr 2007.

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