Gonzales v. Carhart alone justifies the Second GW Bush Administration

Thank God for Justice Alito.
Thank God for Justice Roberts.

The best-of highlights from the ruling, courtesy of Justice Ginsburg:

Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey,between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.

Ultimately, the Court admits that “moral concerns” are at work, concerns that could yield prohibitions on any abortion. See ante, at28 (“Congress could … 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.”). Notably, the concerns expressed are untethered to any ground genuinely serving the Government’s interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent. See, e.g., Casey, 505 U. S., at 850 (“Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”); Lawrence v. Texas, 539 U. S. 558, 571 (2003) (Though “[f]or many persons [objections to homosexual conduct] are not trivial concerns but profound and deep convictions accepted as ethical and moral principles,” the power of the State may not be used “to enforce these views on the whole society through operation of the criminal law.” (citing Casey, 505 U. S., at 850)).

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Ante, at 29.7 Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. Ante, at 28–29.8 The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.9

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. See ante, at 28 (quoting Congressional Findings (14)(G), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769).

One wonders how long a line that saves no fetus from destruction will hold in face of the Court’s “moral concerns.” See supra, at 15; cf. ante, at16 (noting that “[i]n this litigation” the Attorney General “does not dispute that the Act would impose an undue burden if it covered standard D&E”). The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Ante, at 14, 24, 25, 31, 33. A fetus is described as an “unborn child,” and as a “baby,” ante, at 3, 8; second-trimester, previability abortions are referred to as “late-term,” ante, at 26; and the reasoned medical judgments of highly trained doctors are dismissed as “preferences”motivated by “mere convenience,” ante, at 3, 37. Instead of the heightened scrutiny we have previously applied, the Court determines that a “rational” ground is enough to uphold the Act, ante, at28, 37. And, most troubling, Casey’s principles, confirming the continuing vitality of “the essential holding of Roe,” are merely “assume[d]” for the moment, ante, at15, 31, rather than “retained” or “reaffirmed,” Casey, 505 U. S., at 846.

Thank God for the Re-Election of President George Walker Bush.

PS: Remember my mock report of the imposition of Curia on the Untied States? Well, the Kos Kids aren’t joking.

6 thoughts on “Gonzales v. Carhart alone justifies the Second GW Bush Administration”

  1. Wow. I knew this topic was somewhat toxic, but the lack of comments tends to make me think it's down right radioactive.

    One of the things I love about this is the way sides switch back and forth over 'decided law'. If it's one decision you like it should be as certain and hard as 0 Kelvin.

    In a pluralistic society I think it is a step in the right direction. In this society, with technology making productive choice an earlier and easy decision before it reaches the point of needing to see a doctor, I think it is a step in the right direction.

    Of course, it's always fun to watch 'living document'-arians jump thru hoops to justify stare decisis right now too.

    But damn, nobody has an opinion on this? Just goes to show you how radioactive the idea is. Nobody wants to be a 'bad guy' be being in on the unpopular opinion. Careful Dan, employers google now days.

  2. Ry,

    It was especially interesting to see Thomas and Scalia offer the liberal wing the same deal that the wing had offered Kennedy in MA v. EPA [1] — “we'll overrule this on states-rights grounds.”

    Another unfortunately silent thread is Adam's atheistic/feministic supportic of the ruling [2].

    Unfortunately, the loudest discussions on this ruling are those that took my Catholic Court post [3] a bit too seriously…

    [1] http://www.tdaxp.com/archive/2007/04/06/parens-patriae.html
    [2] http://themetropolistimes.blogspirit.com/archive/2007/04/18/finally-some-good-news.html
    [3] http://www.tdaxp.com/archive/2006/01/31/sam-alito-omni-sub-papa.html

  3. I've never found Singer's concept of 'personhood' a convincing argument. It's flawed in my opinion. Sorry Adam, not trying to take a swipe at you(if you're reading this, or even if you're not).

    I'm erminded of 'chickenheads' and 'bugheads' from 'Do Androids Dream of Electric Sheep' by that argument. We've defined them as such ergo they are.

    I'm not sure I picked up on the feminist element. Could just be 'cause I's ignorant. I don't see citing S.B. Anthony as invoking feminism. I could be wrong. A declaration that even aetheism has room for protecting human life, 'personhood' or not, I can see. But not necessarily feminism. Not saying you're wrong. Just that I don't see it(where's the sailboat!).

    Yeah, calls that it's 'implementation' of Catholic law seem really misplaced. It's not. If it were there'd be a broad ban on abortion. Duh. Silly rabbits, trix are for kids.

  4. In the deep woods you sometimes see evidence that little strokes fell great oaks, and you also sometimes see great oaks on which there are a lot of little-stroke scars.

    Roe is an oak. For now or forever is yet to be known.

  5. George Will noted this morning on ABC's “This Week” that technology will help change society's perception of abortion, as babies born earlier (like the one who was born at 21 weeks and survived) will survive because of medical advances. In a few more years, the issue may very well be moot for most abortions.

    On the other hand, my celebration of the victory for common sense and decency aside, I remain infuriated that adoption reform is still not taken seriously by seemingly anyone in Congress or the Executive Branch. If this country were to make a real effort to fix the broken adoption system in this country, with its $40,000 adoption costs and long waiting lists caused by unnecessary paperwork and legal snafus, more and more women who might otherwise choose abortion would instead choose adoption.

    That to me is the real moral issue here. That seemingly every American would support such a reform and yet it remains even undiscussed is a terrible tragedy that has cost the lives of countless unborn children and deprived thousands of good Americans from raising the child they cannot conceive due to health reasons or personal choice.

  6. Eddie,

    In the days of Exodus and Augustine, they had technology capable of distinguishing formed from unformed: examine a miscarriage and count the weeks from conception. In our sanitized world, we lost that link. So the 20th century rolled in, and only now do we have even more clever gadgets which allow us roughly the perception of illiterate hunter-gather escapees from Egyptian slavery.


    Sooner, but eventually, as all things are, Roe will be “a shatter'd visage lies, whose frown And wrinkled lip and sneer of cold command”…. [1]


    An excellent critique, but it would get more traction from Adam if you posted it on his blog as well! 🙂

    [1] http://en.wikipedia.org/wiki/Ozymandias

  7. Dan tdxap, I'm not suprised you had to quote from the dissent. Look what the actual ruling from our “pro-life” justices states:

    Section IV (A):“The medical profession [abortionists], may find different and less shocking methods to abort the fetus in the second trimester…”

    The justices upheld a “regulatory” law “under the Commerce Clause” (§IV, B), sort of like a dialysis guideline. They actually suggest other ways for abortionists to kill the fully intact, late-term child to comply with their ruling, such as “a prior injection to kill the fetus” (§IV, B).

    Kennedy, Roberts, Scalia, Thomas, and Alito concur throughout and specifically in Section III that the PBA ban and their ruling allow the abortionist to deliver a late-term baby all the way up to the navel before killing him. To actually violate this regulation, section III (A) “requires the fetus to be delivered ‘until… any part of the fetal trunk past the navel is outside the body of the mother.”

    In §III (C) (1) Kennedy, Roberts, Scalia, Thomas, and Alito, regarding a still living unborn child, ruled that, “the removal of a small portion [“say, an arm or leg,” first pulled outside of the mother, as far as up to the navel] of the fetus is not prohibited.”

    Section III (A): “If a living fetus is delivered past the critical point by accident or inadvertence [and the abortionist then performs a textbook PBA] no crime has occurred” which could occur if for ex. the mother is over “dilate[d]” §III (C) (2).

    This ruling provides no authority to save even one child, and instead prefers “reasonable alternative procedures” §IV, (B), for killing “late-term” children that include §I (A), “a leg might be ripped off the fetus,” “friction causes the fetus to tear apart,” “evacuating the fetus piece by piece continues,” “10 to 15 passes with the forceps,” “ripping it apart,” “dismemberment.”

    No wonder you had to quote Ginsberg’s dissent, and not the ruling itself, to find something to like, this ruling is repeatedly vulgar in its hatred of the unborn; and no wonder so many pro-life ministries are condemning the ruling (see a list of leaders and ministries at http://www.covenantnews.com/enyart070424.htm).

  8. Wow.

    Look, alot of us Catholics hate abortion. But we somehow find room for others to choose their own road to perdition while not cheering them on or wanting to be all authortarian in forcing them to choose the proper path. There's a balance that can, and, unless we want theocracy, must be struck and maintained. That means accepting a little of what we despise. A full rebuke of abortion, even PBA, is too far–unless we want to emulate the mullahs of Iran. Too much making the US over in Catholic fashion. I'd be happy, but my inlaws would have a coniption fit(and I've got enough trouble with them to begin with).

    Barnett's a good example of what I'm talking about. I can't imagine the man actually LIKING abortion. But he sees some utility in it in creating a better world. So he tolerates it, however much it goes against his own beliefs, and even sees it(well, more the ability to control reproduction intelligently) as a way for the Gap to become un-Gap. That's a far cry from being a NOW champion, you know. Same here. The LAW prevents establishment of theocratic rules. THere's other reasons but then we'd have to have the debate over 'personhood' vs. simply being human, and most of the country isn't ready for that.

    There's lots of good reasons not to have abortion, not just theological, and many reasons for it to be obsolete(even if it means accepting birth control that prevents conception). I don't know about you Holdorf but I was taught to lead to Salvation and Grace not subjugate and force them to it.

    Take half a loaf and be happy. We're lucky to have even gotten this much.

  9. George,

    Thank you for your comment. You are right that the ruling could have been grander. In the end, the Court ruled narrowly in favor of life while building the groundwork for more success later on. Sure progress now plus easier progress in the future. It's not perfect, but it's not a loss, either.


    The proper argument against pre-birth infanticide isn't some theological nicety, but rather the fact is slaughters infants. Babies are able to remember complex patterns they heard in the womb, and the pre-birth infant is in many ways indistinguishable from the post-birth infant.

    I don't fully understand the Church's true teaching, especially in its modern elucidation, but I understand the Law and Saint Augustine: abortion before the human form is a method of birth control; abortion after the human form is a method of murder.

    PS: The court made another wise decision today.


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