- The Washington Times - Monday, April 30, 2007

Pro-choice abortion crusaders were hoisted on their own petard when Supreme Court Justice Anthony Kennedy sustained the federal Partial-Birth Abortion Ban Act of 2003 (Act) in an orgy of intellectual incoherence.

They celebrated comparable fatuousness in Roe v. Wade (1973), Planned Parenthood v. Casey (1992), and Stenberg v. Carhart (2000) where the Court enlisted “penumbras” and “emanations,” a woman’s “personhood” and “destiny,” “mysteries of the universe,” and the views of the American Medical Association to justify summoning into being a right of privacy undetectable in the Constitution’s text or clear intent. Justice Kennedy’s opinion in Gonzales v. Carhart (April 18, 2007) was no more ill-reasoned. To empower a Court to create rights at will is to endow it with a corresponding authority to confine or destroy them by caprice.

The federal Act prohibited a particularly gruesome abortion procedure in the later stages of pregnancy commonly referred to as “dilation and extraction.” One case was described as follows before the Senate Judiciary Committee: “Dr. Haskell went in with forceps and grabbed the baby’s legs and pulled them down into the birth canal. Then he delivered the baby’s body and the arms — everything but the head. … The baby’s little fingers were clasping, 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 startled reaction, like a flinch, like a baby does when he thinks he is going to fall. 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.”

Multiple suits assailed the Act in three federal district courts as imposing an “undue burden” on the right to an abortion as decreed in Supreme Court precedents. A more convincing defect was left unaddressed: namely, that Congress lacked authority to regulate abortion under its power to regulate interstate commerce (Commerce Clause). Conservatives customarily deplore Congress’ employing the Commerce Clause to encroach on traditional state prerogatives, like regulating abortion or marriage. Thus, they succeeded in the Supreme Court in challenges to a federal ban on guns in schools and a federal civil rights action for violence against women. But they did not quarrel with a Republican Congress’ reliance on the Commerce Clause in Gonzales v. Carhart to promote a national pro-life abortion policy.

The neglect was highlighted by Justices Clarence Thomas and Antonin Scalia — both conservative icons — in a concurrence. Justice Thomas volunteered: “I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.” The defenders of the Act probably chortled in the manner of Patrick Henry, “If this be treason to the Constitution’s federalism, let’s make the most of it.”

In any event, the Act seemed flawed under the Supreme Court’s precedents that recognized a constitutional right to be free from any “undue burden” in choosing an abortion. In Stenberg v. Carhart, the Court held unconstitutional a Nebraska law that categorically prohibited partial-birth abortion procedures similar to those banned by the federal Act. The Court reasoned that the absence of a health exception for the mother placed an “undue burden” on the right to an abortion. It further explained that a health risk was constitutionally cognizable as long as medical opinion was divided over the matter. The federal Act at stake in Gonzales was indistinguishable from the partial-birth prohibition condemned in Stenberg. It created no health exception to its absolute ban on dilation and extraction. Yet medical opinion was divided over whether an exception was necessary to avoid subjecting women to significant health risks. Justice Kennedy acknowledged: “There is documented medical disagreement whether the Act’s prohibition would ever impose significant health risks on women.” He nonetheless sustained the Act by sheer ipse dixit while shying from overruling Stenberg.

Further, Justice Kennedy reaffirmed the core holdings of Roe and Casey while discrediting their rationale. He maintained that from the beginning of conception the government has a legitimate interest in banning abortions to protect women from ill-advised choices; and, to avoid dulling a physician’s devotion to preserving and promoting life. The associate justice elaborated: “Respect for human life finds an ultimate expression in the bond of love the mother has for her child. … Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.”

But these interests in prohibiting abortions remain undiminished throughout pregnancy. They would justify overruling Roe and Casey and upholding abortion bans except to save the life of the woman. Justice Kennedy, however, did neither.

In sum, unanchored to the intent of the Constitution’s framers, abortion rights are whatever a majority on the High Court says they are. On that score, Gonzales is no different than its conflicting antecedents.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda, an organization devoted to restoring the Constitution’s checks and balances and protections against government abuses.

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