NASHVILLE, Tenn. (BP)–I finished reading the transcripts of the first day of arguments before the Supreme Court in Carhart v. Gonzalez and Planned Parenthood Federation v. Gonzalez, and when I put down the second document, all I could do was shake my head and think, “Oh for the wisdom of Solomon!”
For those not familiar with the cases, both respond to challenges to the constitutionality of the federal Partial Birth Abortion Ban Act passed by Congress and signed into law by President Bush in 2003. Before it could be implemented, federal judges in New York, N.Y., San Francisco, Calif. and Lincoln, Neb., declared the law unconstitutional.
In passing the bill, Congress found that the procedure is never necessary for the health of the mother. But the law does provide for protection of the life of the mother, stating that it “does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.”
The federal government is appealing the rulings by the Eighth Circuit Court of Appeals, which found in Carhart that the law does not contain an exception for the health of the mother and by the Ninth Circuit, which found in Planned Parenthood that the Partial Birth Abortion Ban Act imposes an undue burden on women and is too vague.
Some of the exchanges in the transcripts are maddeningly laughable.
One of the most liberal justices on the court, Ruth Bader Ginsburg, argued peripheral points about the Commerce Clause and states’ rights, delighted to take up the court’s time to bring up a “feature of this legislation that has not come up so far…. We are going to take away the choice from the states,” she said, “in an area where up until now it’s, it’s been open to the states to make those decisions.”
Never mind that neither of the government’s challengers in the two cases based their positions on this discussion of the Commerce Clause — a point Solicitor General Paul Clement made to dispatch Ginsburg’s argument.
Yet while Ginsburg was only too happy to chase a rabbit on this inane point, she bristled when the discussion turned to serious dialog about the preservation of life. Early in the arguments, justices Antonin Scalia and John Paul Stevens had a give-and-take with Clement about the anatomical markers in the Partial Birth Abortion Ban Act that define whether an abortionist has broken the ban (if either the head is fully delivered or the trunk of the unborn child is past its navel outside the mother’s womb).
Stevens probed whether it was unlawful when “the feet are more than halfway out” for a fetus only four or five inches long, arguing that these were “very different from fully formed babies.” Clement agreed in part about whether these were babies, but Scalia appeared to take offense, saying, “When it’s halfway out, I guess you can call it either a child or a fetus.”
Clement conceded to Scalia’s point, but added “nothing turns on the terminology.”
The three continued to pursue the discussion, prodding the particulars of when the lethal act occurs in the womb or “when the child or the fetus, whichever you want to call it, is more than halfway outside of the mother’s womb,” as Clement summarized.
But Ginsburg could not stomach any more after Scalia posed the hypothetical question: “Would it, would it be infanticide to deliver the fetus entirely and just let it expire without any attempt to keep it alive?”
“Well, in the post-viability context it would clearly be, it would clearly be infanticide,” Clement responded. When he attempted to illustrate with a hypothetical example, Ginsburg interrupted.
“We’re not talking about whether any fetus will be preserved by this legislation,” she said. “The only question that you are raising is whether Congress can ban a certain method of performing an abortion. So anything about infanticide, babies — all that — is just beside the point because what this bans is a method of abortion.”
Forget about the apparent arrogance — she pursues an aimless point when it serves her interests, but cuts off serious debate when it doesn’t.
The point is that Ginsburg misses the point … but she makes one, too.
Clearly, Congress was drawing a line in the sand when it banned partial-birth abortion (also known as dilation and extraction or D&X). Clement made that point to Ginsburg when he replied that Congress had an interest in “maintaining a bright line between abortion and infanticide.”
Partial-birth abortion is a gruesome procedure which entails delivering a child, except the head, then cutting into the base of the skull to suction out the brain while the head is kept in the birth canal.
Make no mistake. The most common form of abortion in the second trimester (used 95 percent of the time), dilation and evacuation or D&E, is equally brutal. The unborn child is dismembered and suctioned or otherwise taken out in pieces, but all this happens “in utero” (inside the mother’s womb). And that is exactly the distinction Congress has made.
It’s one thing to claim that abortion is merely a matter of removing tissue, killing a fetus, not a child, when the lethal act takes place totally inside the womb. But it’s absurd to argue that a baby is not a person, just because it’s only partially delivered.
For context, consider the NFL rule that if the ball breaks the plane of the goal line, it’s a touchdown. Regarding rape, federal law reads “penetration, however slight” completes the act. Yet abortionists and their supporters claim that a baby is not a baby until it completely exits the birth canal.
The Bible states that “the natural man does not receive the things of the Spirit of God, for they are foolishness to him; nor can he know them, because they are spiritually discerned.” But I am amazed that a physician trained in the arts and sciences of the human body could deny that he holds an infant in his hands when he ends its life through partial-birth abortion.
Yet, Ginsburg is right in one sense. The Partial Birth Abortion Ban Act does not preserve lives; it only makes one form of killing the unborn more difficult to perform. But the ban is a step in the right direction.
Liberal justices did not corner the market on absurdity during the proceedings.
Arguing for Carhart, lawyer Priscilla Smith passionately described the need for the D&X procedure in terms of safety of the woman. Complications, “rare” but devastating, cause doctors to use the D&X procedure to minimize placing instruments in the womb because of fears of perforations, she said.
She raised the specter of hysterectomies and sterility if D&X procedures are banned, and even told about “circumstances where the physician actually holds the fetus in the woman’s body in order to cause fetal demise rather than causing fetal demise because it’s an integral part of removal of the fetus from the woman’s uterus.”
It seems there’s always a way around laws and prohibitions.
But Chief Justice John Roberts probed her commitment to the safety of the woman, asking about the instance when the head is delivered first.
“So your arguments about why the D&X is safer … wouldn’t that apply in the case of total delivery of the fetus as well?”
“In other words,” he continued, “if you want as much of the fetus intact and out as possible, why wait, stop it halfway? Wouldn’t the safety argument suggest delivery of the fetus?”
[By the way, this would resolve the abortionist’s dilemma of having to hold an unborn child in the womb to cause its “demise.”]
Smith replied by using the example of ascites (an abnormal amount of intraperitoneal fluid), a condition that results from a variety of causes that expands the unborn child’s abdomen, obstructing delivery.
“It’s lethal anomalies that I was talking about,” Smith insisted. “And in those circumstances, an overt act would need to be performed that would in fact cause fetal demise before the fetus could be, the delivery could be continued.”
But Smith conceded that there was no data to back up her claims.
“We don’t have a quantification of the safety,” she said. “What we … what we have is the clinical experience of major leading physicians in the field.” She was quick to state that complications requiring the D&X procedure are rare, apparently to infer that partial-birth abortions are rare and further justify use of the D&X procedure.
Just for context, let me offer some statistics to address the claim about the supposed rarity of partial-birth abortions:
— In 2000, there were an estimated 1.31 million abortions in the U.S. The Guttmacher Institute (the research arm of Planned Parenthood) estimated that the D&X procedure was used 0.17 percent of the time (amounting to 2,227 cases, triple the 650 instances reported in 1996).
— By comparison, there have been about 1,000 total executions in the U.S. during the 30 years since capital punishment was declared legal in 1976, but death penalty opponents still call for abolition.
— The final death toll in the World Trade Center attacks was 2,749. Five years later, terrorism haunts the American psyche.
— There have been more than 2,800 U.S. military deaths in Iraq since the launch of Operation Iraqi Freedom in March 2003. The growing death toll has been cited as a primary cause in loss of confidence in handling of the war, a major factor in the midterm elections.
Yet, pro-abortion forces would claim that partial-birth abortion is rare, on the basis of the high number of abortions in America.
By the way, what are the leading reasons for women to have abortions?
— In a 2004 U.S. survey, three-fourths of women who had an abortion cited concern for or responsibility to others; three-fourths said they could not afford another child; another three-fourths said a baby would interfere with work, school or the care for dependents.
— About half of all terminations were reported to be repeat abortions (second, third or more).
— Only 12 percent claimed a “physical problem with my health” and another 13 percent cited “possible problems affecting the health of the fetus” as the reason for their abortions, though it’s not possible to tell whether the health problems were trivial or serious in nature.
— Of all abortions, incest is reported as the cause in less than 0.5 percent of instances and rape in another 1 percent of cases.
In short, the sheer number of abortions, most performed for convenience’s sake, makes partial-birth abortions look rare by comparison.
So how does Solomon’s wisdom apply to the present debate?
For most people, Solomon’s wisdom is defined by the guile he used to identify the rightful mother of a child — ordering that a baby be cut in two parts to satisfy competing claims from two women, each claiming to be the mother. Interestingly, he showed no concern for the interests of the mother, but the irony of his judgment was that he sought to protect the best interests of the child.
However, perhaps another sign of his wisdom was that upon becoming king, he asked God for wisdom that he might discern between good and evil.
In the present dilemma, there are reams of research material. There even is a study showing that as early as the first division of a fertilized egg, cell specialization begins. Scientists found that where your head and feet would sprout, and which side would form your back and which your belly, are defined in the minutes and hours after sperm and egg united. This is not quite proof that life begins at conception, but the fact that individualization starts so early shows that an embryo is not just a blob of indistinct tissue.
The justices deciding the case boast incredible credentials of education and experience. They hail from the likes of Harvard, Yale and Georgetown, clerked with distinguished jurists like William Rehnquist and previously served in prestigious posts such as the U.S. Court of Appeals for the District of Columbia.
Moreover, there are expert witnesses who can aid the Court’s understanding about the complexities of the issues, and many have done so already in helping Congress fashion the Partial Birth Abortion Ban Act.
Yet, reading the transcripts of the opening salvos, it occurred to me that the Court might just fail to uphold the ban, save for wisdom like Solomon’s.
Will Hall is executive editor of Baptist Press.