Thursday, April 26, 2007
On a long plane flight yesterday, I had the opportunity to read Gonzales v. Carhart in its entirety. Thinking that there might be a few law journal articles in the making on this important decision, I would like to offer some of my initial thoughts to those who will be studying the case in detail as they begin to draft article manuscripts.
In essence, the majority (with the helpful clarification by Justices Thomas and Scalia) is largely correct in its analysis and legal reasoning. The plaintiffs/respondents, supporters of abortion “rights,” and the dissenters are, to borrow an expression from Stanley Fish, still wrong after all these years of questionable “abortion jurisprudence.”
The majority properly begins with a careful analysis of the statute enacted by Congress that was challenged by Dr. Carhart and the Planned Parenthood Federation. Following sound principles of statutory interpretation within the template of Constitutional adjudication, the majority reaches logical conclusions about the legality of the statute as a proper exercise of Article I authority that is subject to judicial review. I wonder if the dissenters would have joined the majority if this decision about the constitutionality of a statute involved the enactment of a law designed to protect the eggs of some bird on the Endangered Species list rather than the protection of nascent human life?
In the context of nascent human life, the majority could have done a better job in choosing its terms. The drift from using “fetal life” to “unborn child” to “embryonic tissue” confuses rather than clarifies. But, when all is done, it should be clear to the reasonable person that the majority is talking about the same subject: a young human life that is threatened by the intact dilation and extraction method of abortion.
The strong differences of the opinions of the majority and the dissenters about the post-abortion psychological health of the mother who has had an abortion raises the important question about “informed consent” that is so much a part of medical practice in the United States. This divide made me wonder to what extent abortion doctors explain to their patients what happens to the child who is the target of the abortion, regardless of the procedure and the trimester involved? As he did in his Stenberg dissent, Justice Kennedy once again explains the “gruesome” details involved with a variety of abortion procedures, including the intact dilation and extraction process that is the subject of the statute attacked in this case. It would seem that this information should be relayed to the mother who is considering an abortion, but is it? If not, what is the justification?
As I read Justice Kennedy’s description of the more commonly used “dilation and evacuation” method of abortion in which child is dismembered—caused by the “friction [of the procedure that] causes the fetus to tear apart”—I recalled an account of Thomas More’s reaction to the execution of the Carthusian monks who were convicted of treason and put to death by drawing and quartering. In both cases, the limbs of human beings are ripped from their torsos. The dissenters offered no objection to the accuracy of the procedures explained by Justice Kennedy.
While still on the matter of abortion methodology, the majority described another means that employs a poison injected into the child who is killed prior to the surgical evacuation. I wonder if those who argue that execution by lethal injection constitutes a violation of the Eighth Amendment would also argue that administering poison to a child convicted of no offense is equally offensive to our Constitutional order? I hasten to point out that potassium chloride is one of the chemical agents often employed in both procedures: abortion and execution by lethal injection. If it is cruel and unusual in the latter context (and I have no argument against this assertion), why is it also not cruel and unusual in the first?
Justice Ginsburg complained of the disregard by the majority of medical evidence provided to and considered by the District Courts. Yet, the impact of the medical evidence offered by the nurse quoted by the majority about what actually happens to a child (page 8 of the majority opinion) subjected to the intact dilation and extraction method escapes her critical eye. It seems that the reaction of the child subjected to the abortion procedure at issue—fingers clasping, feet kicking, and arms jerking—are of little concern to the dissenters when medical evidence is being examined.
Justice Kennedy and Justice Ginsburg often employ the phrase “necessary to preserve a woman’s health” in the context of the legal justification of abortion. Yet, I remain unconvinced about what standard can possibly be used medically and legally to justify abortion necessary for preserving a woman’s health. To reinforce my concern, one of the reversed Circuit Courts of Appeal itself stated that there are substantial disagreements within the medical community about whether the intact dilation and extraction method is “ever necessary to preserve a woman’s health.” If there is dispute on this method (as I suspect there is on many other methods of abortion including intact dilation and extraction), how can it be deemed “necessary to preserve a woman’s health”? It would appear that this crucial foundation for justifying any abortion procedure is not of solid construction but is more like the unstable house of cards—maybe impressive to look at but unsound in fact.
Elsewhere I have commented on the use of the phrase “anatomical landmarks” used by various members of the plaintiffs/respondents in this case to explain how the killing of a child can be justified or not. I once again make a point I have made earlier (the first time at the March 2001 Symposium convened at Catholic University by Michael Scaperlanda and Teresa Collett on self-evident truths and Catholic perspectives on the law) that it is unjustifiable to claim that a hideous procedure that kills the life of a child can be justified or not depending on the “geographic location” of the baby. I thought the “geographic location” argument was put to rest once the justification of Dred Scot was abandoned. However, it seems that I am mistaken on this point insofar as the plaintiffs/respondents and the dissenters are concerned. For them, just about any abortion can be declared legal as long as the child is located in the right place. But regardless of the child’s physical location, its human ontology remains the same.
At page 29 of the majority opinion, Justice Kennedy states that “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Justice Ginsburg scorns this statement of the majority at page 15 of the dissent where she identifies it as “an antiabortion shibboleth.” However, when she refers to the majority’s text, she leaves out the important modifier “some” which the majority used in a careful way to indicate that the “regret” about which they wrote was not universal in their view. Somehow this careful distinction escaped Justice Ginsburg in her harsh critique of those who are opponents of abortion.
Two important questions surface toward the end of the majority’s opinion. The first deals with the fact that the standard dilation and extraction method, which remains unaffected by this decision, is more brutal than the intact method which is the subject of the legislation under review. Could Congress or state legislatures, given this decision now be able to proceed to legislate against the standard method and draft legislation that could survive a legal challenge? The second and more apparent question is the statement proffered by the majority that the statute “is open to a proper as-applied challenge in a discrete case.” How long must we wait for such a “discrete” challenge? Probably not very long.
A few comments about particular points in Justice Ginsburg’s dissent remain in order. Throughout her opinion, she raises concerns about endangering the woman’s life or health. I don’t dispute the need to be concerned about a woman’s life or health. This is important. But surely the life and health of any human being must be of great concern to us all. I remain unsatisfied that the dissent or any proponent of abortion “rights” has demonstrated how the carrying to term of the child is the source of this endangerment to women. After reflecting on the procedures involved in most abortions, I must conclude that they, rather than the presence and development of the child, present the actual endangerment to the mother’s life or health. With so many “passes” through her delicate organ tissues and the possibility of laceration by medical instruments or the baby’s broken bones, it seems that most abortion procedures subject women to far greater risks than do the presence of her unborn child.
On a different front, the first footnote offered by the dissent attempts to correct the use of a term—“partial birth abortion”—when Justice Ginsburg asserts that the recognized term found in medical literature is either “dilation and extraction” or “intact dilation and evacuation.” Fair enough. But, to borrow from Will Shakespeare, a dubious act by any other name is still a dubious act.
While I am discussing the dissents distaste for certain terms, its members raise some objection to referring to doctors who perform abortions as “abortion doctors.” If this is truly a pejorative term, then it would be equally pejorative to refer to cardiac specialists as “heart doctors,” ophthalmologists as “eye doctors,” dermatologists as “skin doctors,” etc.
The dissenters brand the majority’s decision “alarming” because it “refuses to take Casey and Stenberg seriously.” I am mystified by the fact that the dissenters are not alarmed by the fact that this jurisprudence fails to take seriously the fact that abortions kill at least one human being most of the time. This fact must be taken seriously, but it seems to escape the legal reasoning of the dissenters not only in this decision but in past abortion cases, including Casey and Stenberg, as well.
On several occasions, Justice Ginsburg concentrates on the distinction between previable and postviable fetuses that are aborted. I question how much longer this distinction can be made in light of the advances in medical sciences where the lives of embryos, fetuses, and unborn children (should these distinctions be required) are being sustained by artificial means. These medical advances would indicate that the earliest human life is viable if it can be sustained and can grow outside of the mother’s womb.
The dissent also censures the majority for selecting certain medical evidence to support its position while ignoring other evidence. The same argument can surely be made about the “authorities” upon which the dissent relies. In this context, I am reminded of a statement attributed to the late Judge Harold Leventhal about the selective use of legislative history by judges when they decide cases involving statutory interpretation: making the choice of what history is to be used is like entering a crowded cocktail party and surveying the assembled humanity in search of your friends.
In my estimation, the dissenters are on juridically thin ice when they express a particularly harsh criticism of the majority who “dishonor our precedent” of Casey, et al. Yet these dissenters were members of the majority in Lawrence v. Texas. When they penned that opinion, they showed little concern of dishonoring other precedent. Perhaps dishonor exists only in certain cases when precedent of their liking is not followed with exacting detail.
Much more needs to be said about the majority, the concurring, and the dissenting. I am confident that this task will be pursued by many in the coming months. RJA sj