Part 4: The Death of a Child
A Gruesome Introduction to Your Supreme Court.
A. A Short Technical Background on Abortion Law.
Stenberg v. Carhart brought the reality of late term abortions vividly and graphically into the forefront of the Court’s understanding. The Court even outlined the horrific “procedure” required to terminate the life of a nearly viable fetus. Yet, this same Court decided that a woman had the constitutional right to destroy human life even at this late stage of development. How did the Court reach a conclusion that the horrific practice of partial birth abortion was a woman’s right? To reach this conclusion, the Court had to extend the reasoning of Roe v. Wade to its further evil conclusion: the sole arbiter of when a woman’s health will trump the life of an unborn child will be a matter for her and her physician alone to decide. Stated differently, the ethical issue will be decided by the individual rather than society, and the individual’s personal ethical standards, together with the physician’s personal and unchallenged idea of “health of the mother” will control over any other standard, whether social, legal or ethical. (EN 10)
This unchecked discretion placed with the physician is exacerbated by the apparent lack of any distinction between physical health and mental health. Mental health exceptions are based on less objective measures than physical health risks. Nevertheless, abortionist physicians not specialized in psychiatry can interpret almost any emotional complaint as basis to abort. Even at the point of near viability, the state’s effort to impose more stringent psychological assessments and verifications would likely be found to unduly burden a woman’s access to abortion. (EN 11)
In earlier decisions, the court defined the right of a woman to abort as different before fetal viability (considered medically to be 24 weeks) (EN 12) and after. Up to about six months, a woman has the legal right to kill her child free of any “substantial burden” imposed by the State. This restriction is virtually no restriction, and the net effect is that courts have not allowed the states to prohibit abortions during this six months. This position is itself extraordinary given current medical evidence of the degree of brain development of a fetus at 6 months. (EN 13) In fetal development, the brain is the fastest developing part of the human body, which is why many prematurely born infants often develop without loss of intellectual capacity.
Post-viability, the actual application of the law is not much different than pre-viability, although the language of constitutional law, if trusted to have content and purpose, would lead you to believe abortion could be prohibited in some circumstances. Specifically, the Court has held that post viability, the State may restrict, even prohibit, abortions if the restrictions advances the state’s interest in “protecting potential human life” and if the abortion is not needed for the life or health of the mother. (EN 14) Read that last sentence again carefully. How is “health of the mother” to be defined, and who is to define it? The simple legal answer is that the only person making this decision is the mother’s physician, and he or she is virtually unaccountable to any objective legal standard or criteria limiting his or her definition. (EN 15)
In Stenberg v. Carhart, the State of Nebraska outlawed partial birth abortions except when the procedure was necessary to protect the life of the mother, but omitted an exception to allow the abortion for the “health” of the mother. (EN 16) The Court therefore found itself examining whether Nebraska’s statute prohibiting partial birth abortions was valid even in the absence of an exception for the mother’s “health” because other abortion procedures were as safe or safer, and were as available. (EN 17) The trial court, the 8th Circuit Court of Appeals, and the U.S. Supreme Court each held the statute unconstitutional based on the precedents set by Roe v. Wade and Planned Parenthood v. Casey. In effect, the Court found that partial birth abortion was, or possibly could be, more protective of the health of the mother than other available abortion procedures. (EN 18) [Although the actual evidence to reach this conclusion was highly equivocal] In this legal calculation, the Supreme Court, following the inevitable logic of Roe v. Wade, gave no weight to the life or health of the “partially born” child. The partially born child in Stenberg v. Carhart was completely abandoned by the Court because it had no independent constitutional status as a “person”, and the State was held to be incorrect in concluding the partial birth abortion procedure was so barbaric that it required no “exception for the health of the mother”. All that mattered to a majority of the Supreme Court was that Dr. Carhart’s unilateral assessment of the marginally improved health of the mother should control, and the Nebraska statute did not recognize Dr. Carhart’s judgment or opinion on that subject as controlling.
After 28 years of practicing law, I was never so amazed, dismayed, and even horrified at reading a court decision as that found in Stenberg v. Carhart. The case frankly stands apart from any I know of for sheer graphic accounting of how death occurs to a fetus during a late term abortion. The fact is that the justices themselves seem to fully aware that the decision they reached would shock the American moral conscience, and Justice Bryer, writing for the majority, begins the written opinion with an acknowledgment that the description will seem horrific to some. Still, as if living in a world where mind and morality (EN 19) are divided, five justices proceeded to give license to a death procedure that can only be described as brutal and inhuman. These five justices not only denied the infant any right to live, but did so after detailing the dismemberment, bleeding, and dying of the infant in cold technical detail. My first feeling after reading the decision was that the Court had lost its mind, and certainly its heart. Secondly, I became convinced that the greatest hope for the reversal of such an insane course was to expose the decision to the American public. I am convinced that most Americans reading the decision will rise up in moral rebellion to denounce the Court, and to take actions to convince elected officials to put an end to the insanity. The best hope for ending this immoral constitutional license to kill innocent life is the appointment of justices in the next 4 years who will swing the majority to overturn Roe v. Wade. (EN 20) “We the People” should do all in our power to persuade our President and Congress to select and approve pro-life jurists to the Supreme Court in the next three years.
