Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, May 2, 2019

On the natural right to obtain a dismemberment abortion in Kansas 2/

"The Kansas Unborn Child Protection from Dismemberment Abortion Act" is  the state law that the Kansas Supreme Court held unconstitutional last week. Understandably, the Act's title makes no appearance in the majority opinion. The Justices needed to shield themselves from confronting the true nature of the private lethal violence they were licensing in the name of the Kansas Constitution. Here's what the majority opinion says instead:

In 2015, the Kansas Legislature enacted S.B. 95, which is now codified at K.S.A. 65-6741 through 65-6749. S.B. 95 prohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when "necessary to preserve the life of the pregnant woman" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman." K.S.A. 65-6743(a).

In this case, the Doctors provide abortions, including D & E procedures, in Kansas. They filed this action challenging S.B. 95 on behalf of themselves and their patients on June 1, 2015. They argued S.B. 95 prevents them from using the safest method for most second-trimester abortions—the D & E method. These restrictions, according to the Doctors, violate sections 1 and 2 of the Kansas Constitution Bill of Rights because they infringe on inalienable natural rights, specifically, the right to liberty.

A graphic description of the D & E procedure referred to in S.B. 95 is not necessary to resolving the legal issues before us. Although the detailed nature of the procedure may factor into the lower court's later decision on the full merits, at this temporary injunction stage the United States Supreme Court's description suffices. That Court explained the procedure involves "(1) dilation of the cervix; (2) removal of at least some fetal tissue using nonvacuum instruments; and (3) (after the 15th week) the potential need for instrumental disarticulation or dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus." Stenberg v. Carhart, 530 U.S. 914, 925, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000). The Doctors argued, and the trial court found, that 95% of second-trimester abortions in the United States are performed using the D & E procedure.

Contrast the majority's description of the legal prohibition at issue with the legislature's language setting forth the prohibition:

Sec. 2. As used in sections 1 through 9, and amendments thereto:

* * *

(b) (1) ‘‘Dismemberment abortion’’ means, with the purpose of causing the death of an unborn child, knowingly dismembering a living unborn child and extracting such unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors or similar instruments that, through the convergence of two rigid levers, slice, crush or grasp a portion of the unborn child’s body in order to cut or rip it off.

(2) The term ‘‘dismemberment abortion’’ does not include an abortion which uses suction to dismember the body of the unborn child by sucking fetal parts into a collection container, although it does include an abortion in which a dismemberment abortion, as defined in subsection (b)(1), is used to cause the death of an unborn child but suction is subsequently used to extract fetal parts after the death of the unborn child.

Notice what is in the legislative description but absent from the judicial description: "the unborn child's body." It's odd that the body is absent from the judicial description when the reach of the legislation turns on a distinction regarding the way in which an abortionist may "dismember the body of the unborn child." The law prohibits dismemberment by means of slicing, crushing, or grasping, but not by suction.

Perhaps the Justices thought that "unborn child" was too loaded of a term. But leaving out any reference to the "body" of this being---whether denominated fetus, baby, or unborn child---reflects willful blindness to the incompleteness of the majority Justices' analysis. They describe the right at issue as the right of a woman to decide what to do with her body, including whether to continue her pregnancy. But there's obviously another body as well, the baby's body. Or the fetus's body, if you prefer. Call it what you want; but do not ignore this human body. For by the time that body has developed to the point that suction aspiration must give way to slicing, crushing, and ripping as means of removing it from the mother's body, that little human body matters. 


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