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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  March 31, 2007
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Topic category:  Other/General

The Long/Brown "electronic" debate on abortion: The Comments

The comments posted at The Federalist Society website on the Wendy Long/Jennifer Brown "electronic" debate on abortion (www.fed-soc.org/debates ) themselves merit attention.

Significantly, the pro-life persons are direct and democratic, while the pro-abortion (including partial-birth abortion) ones are deflective and disparaging and don't trust "We the People."

The first commenter, Georgetown University Law Center Professor Randy Barnett, deemed the debate over the constitutionality of the Federal Partial Birth Abortion statute "a stalking horse for the larger debate over abortion" (simplistic) and insisted that "what is really at issue is (1) the fundamental right of every individual, male or female, to preserve her health, and (2) when the medical decision of a person and her state-licensed physician on this matter should be overridden by a majority of politicians in a state legislature or in Congress" (a clever ploy to distract attention from what "partial birth abortion" really is.

Mrs. Long defined it immediately--"a late-tern abortion in which the baby is dismembered in the womb and pulled out in pieces ('D&X"), or her skull is punctured and her brains vacuumed out so her body can be extracted ('intake D&E')"--and Ms. Brown, like other abortion apologists, did her best to distract attention from that gruesome reality.

The security of America is NOT so important that a terrorist can be tortured (legally), but a pregnant woman's "health right" IS so important and her unborn baby's right to life is so unimportant that the law allows dismembering in the womb and pulling out the pieces and skull puncturing and brain contents-vacuuming?

No wonder Mrs. Long, wife and mother, is a strict constructionist focused on the God-given right to life and not niggardly in defining to whom that right has been given.

Professor Barnett, not having been aborted, is all about "liberty."

Professor Barnett: "In the 2000 case of Stenberg v. Carhart, the Supreme Court held that the decision of a patient and her physician should be protected by the courts only when the necessity of the procedure is supported by a substantial body of medical authority. In other words, where recognized medical authorities are seriously divided over whether a particular medical procedure is ever necessary to preserve a person's health, the individual and her doctor get to decide. In this way, independent medical authorities rather then the bare preferences either of the individual, on the one hand, or of a majority of legislatures, on the other, decided the disputed case. Under this approach, Congress is free to ban any medical procedure (whether abortion or not) where there is no substantial medical authority supporting the necessity of its use. And, if Congress chooses to ban a procedure that might sometimes be necessary, it may also define the 'health exception' so it is not so infinitely expandable as to amount to a completely discretionary nonmedical choice even when it is not really necessary. The abortion issue is really beside the point. According to Planned Parenthood v. Casey, a woman has a constitutional right to choose abortion to control reproduction (as opposed to her health) only early in her pregnancy — a period in which 'partial birth abortion' is supposed to be inapplicable. Under Casey, the government is perfectly free to restrict a woman's reproductive rights during the end of term when the state chooses to protect the rights of the fetus. But because a person never loses the fundamental right to preserve his or her life and health, any such ban on reproductive rights late in term must still accommodate the rights to life and health. The Federal Partial Birth Abortion Act does respect the right to preserve one's life even during the late term of abortion. Unfortunately, it fails in two other respects. First, contrary to how it is sometimes defended, it does not clearly limit its prohibition to late term abortions, thereby treading on the reproductive rights protected by Casey. Second, it fails to allow for a 'health exception,' thereby treading on the fundamental right to preserve one's health, which a woman retains throughout her pregnancy, just as she retains her right to life."

But...abortion IS the point. And the constitutionality of the Federal Partial Birth Abortion Act is at issue.

It's understandable, of course, that Ms. Brown and Professor Barnett simultaneously treat a pregnant women's interest in her own life and health as equally strong and abortion as a medical procedure like an appendectomy instead of a unique one. But abortion is a unique medical procedure: it is the termination of the life of an unborn baby, not the removal of an unnecessary bodily organ or a face lift (as to which only the expectant mother has a "life" or "health" interest.

Professor Barnett: "If the statute were redrafted to respect carefully reproductive rights early in term and the right to preserve one's health late in term, then both sides of the abortion debate would get what they say they want from this statute. But, of course, both sides really want more than this. The question is, will the Court hold the middle ground identified in Stenberg, or give way to one side of the abortion debate or the other?"

No, Professor Barnett. If the statute were redrafted as you suggest, it would not protect the thousands of unborn babies that it seeks to protect, because in practice the so-called "health exception" would be misused to allow gruesome partial-birth abortion upon request, for trivial or non-existent health considerations.

And yes,: both sides really want more, one more human life and the other more abortions.

Notre Dame Law School Professor Richard Garnett disputed Professor Barnett.

Professor Garnett:

"My good friend Professor Randy Barnett suggests that the Supreme Court's 2000 decision in Stenberg v. Carhart occupies the 'middle ground' in the abortion debate. Notwithstanding my respect for Professor Barnett, I cannot agree. That is, like Justice Kennedy, I am unable to regard a decision that invalidated a (largely symbolic) legislature measure that enjoyed overwhelming and bi-partisan popular support and that took the modest step of writing into law the public's entirely reasonable revulsion at a practice which involves seizing the legs of a living unborn child, stabbing him or her in the head, and -- as some say -- 'evacuating cranial contents' as a 'middle ground' decision.

"I also have to disagree with Randy's characterization of the abortion right invented in Roe / Casey: Randy writes, '[a]ccording to Planned Parenthood v. Casey, a woman has a constitutional right to choose abortion to control reproduction (as opposed to her health) only early in her pregnancy ­ a period in which "partial birth abortion" is supposed to be inapplicable.' In fact, the Roe / Bolton / Casey / Stenberg line of cases creates a right to abortion that -- while it might be difficult to exercise in some jurisdictions where there are few willing providers, and while it might be lightly burdened with 'informed consent' laws and the like -- is, in effect, unlimited.

"At the end of the day, as I see it, this case is more about self-government than, as Randy contends, self-preservation. Does our Constitution really disable us from saying that the abortion right -- which, of course, most Americans believe should be preserved -- does not extend to a procedure as brutal and brutalizing as partial-birth abortion? With all due respect, I do not think it does."

Without passing on the question of how much respect is due, suffice it to say that Mrs. Long eloquently and exactly explained not only why it does not, but also why it is what Professor Garnett himself called an "invented" right.

Chapman University Law Professor John Eastman shared my enthusiasm for Mrs. Long's exposure of the fundamental flaws in the pro-abortion position.

Professor Eastman:

"Kudos to Wendy Long for exposing the hypocritical arguments made by the defenders of abortion. Your response to Jennifer Brown's claim that 'our Constitution protects individuals from unwarranted government intrusion into their personal and private domain' was particularly good. The fact is that our Constitution is designed to secure the inalienable rights to life, liberty, and property, yet that basic precept has been perverted to define a 'liberty' interest in taking another person's life. The drafters of the Constitution, and the author and signers of the Declaration before it, would be turning over in their graves to see what distortion has been done to the principles they sought to vindicate. The exchange, though, reminds me of the similar exchange over private right and natural right that occurred in the 1858 campaign for Senate in Illinois, between Stephen Douglas and Abraham Lincoln. Douglas, too, argued that the Constitution was designed to protect the property interests of slaveholders, just as Jennifer argues here that it is designed to protect the liberty interests of those seeking an abortion. Lincoln's rejoinder to Douglas is equally apt here: That's all well and good, if a slave doesn't also have natural rights that the Constitution is also designed to protect. Your point that modern science has confirmed what we have always known --that a unique life is created at the time of conception--radically changes the calculus of 'liberty' vs. life in the Constitution's hierarchy. There are no easy answers--legally (although there certainly are morally)--on where that balance should be set, but the greatest failure of the Court in Roe was to pretend otherwise, to assert that it alone had the answer to that question, and that the people of this nation had no more to say about it than the people of the 1850s had to say about the extension of slavery into the territories. Just as my 'choice' to swing my fist ends at another person's nose, so to the 'choice' to perform an abortion has to take account of the rights of the other life involved. To say that, in a democracy, the people have no collective say in such a fundamental decision is radically to misunderstand both the nature of the dispute and the nature of legitimate democracy. Congrats on moving the ball forward on these critically important points."

Wonderfully said yourself, Professor Eastman.

CUNY School of Law Assistant Professor Caitlin Borgmann discouraged reconsideration of Roe.

Professor Borgmann:

"Why am I having a tired sense of deja vu reading this debate? Maybe it's because of the time-worn arguments Long invokes about why privacy is not protected by the Constitution, arguments that have not grown more convincing with age. Take her point that one must 'rewrite the Constitution' to find a right of privacy that encompasses fundamental personal decisions like whether to bear a child. Lots of things that Long probably thinks should be protected aren't literally mentioned in the Constitution -- like the Executive Privilege that President Bush lately keeps threatening to invoke. And, if we want to be literal, the Ninth Amendment literally does contemplate rights not listed in the Constitution. Or maybe it's Long's strident, uninformed assertions about what kinds of abortion procedures are and aren't healthy for women. Her exclusive reliance on the dissents in Carhart v. Stenberg for how abortions could be done most safely (e.g.,'it would be safer still to deliver the child intact and then kill her, outside the womb altogether'??) betray an enormous void in her understanding of the medical issues involved. There is a reason for the near unanimity among trial judges that these bans are unconstitutional. Their ranks include conservative judges like the recently deceased Judge Casey, who was obviously personally opposed to abortion yet invalidated the federal ban. These judges sat through trials in which they heard detailed medical evidence on both sides of the issue. Perhaps Long could start by reading the trial courts' opinions or, as Brown suggests, the Supreme Court briefs. On the other hand, maybe I'm exhausted by Long's disingenuous, half-hearted claim that fetuses are persons. If a fetus is really a person, why on earth would we want to let state legislatures vote on the question and risk a situation in which some states allow the murder of these innocent babies? Moreoever, even if Long is willing to accept total bans on abortion, the public clearly is not. Witness South Dakota, where voters rejected a ban that failed to include exceptions for rape and incest. Law professors can come up with fancy 'self-defense' arguments that would explain the rape and incest exceptions, but I guarantee you this is not where the public is coming from. The public goes with its gut on abortion. It tolerates abortions that it thinks are 'just,' and its sense of justice is informed by stereotypes about irresponsible and selfish women. In the face of those kinds of motivations, do we need to depend on the Constitution to protect women's rights to determine the course of their own lives and health? Absolutely. Until opponents of the right to abortion are ready to address the issues forthrightly and honestly, we are doomed to have the same conversations over and over, and get nowhere."

Putting aside Professor Borgmann's tiresome focus on how she feels, her attempt to shift the focus from the constitutionality of the partial-birth abortion ban and her unsupported and unsupportable ad hominem attacks on Mrs. Long and the forthrightness and honesty of "opponents of the right to abortion" generally, it is evident that Professor Borgmann herself has not been forthright and honest. Example: her conclusory statement that "[t]here is a reason for the near unanimity among trial judges that these bans are unconstitutional.... detailed medical evidence on both sides." Professor Borgmann failed to acknowledge that it is for higher courts, not trial judges, to reconsider higher court rulings. Judge Casey's decision demonstrated that he did his duty as a trial judge under the principle of stare decisis, not that he approved on decisions like Roe and Doe. A fair reading of Mrs. Long's statements shows her advocating for democracy, while Professor Borgmann worries about "where the public is coming from" and fears its "sense of justice." That is telling.

Finally, Cathy Ruse emphasized that Ms. Brown had treated the number of lives affected by partial-birth abortion as trivial.

Ms. Ruse:"On late-term abortions: Ms. Brown responds like most abortion advocates to challenges about later-term abortions they’re 'rare,' so it’s irrelevant. But Wendy Long is absolutely correct to point out that abortions in the later months of pregnancy account for the death of over 10,000 children each year, perhaps more. Abortion apologists do themselves no favors in dismissing these lives as irrelevant. Brown conflates post-viability with third-trimester; modern science shows this to be a rhetorical trick and a falsehood. The Supreme Court’s use of viability refers to that point at which a child has a 51% chance of survival with appropriate medical intervention. As Wendy Long correctly states, this means 21 or 22 weeks for some children, and it means 24 weeks for most. This brings us into the second trimester, not third. Brown refers to a study of later abortions showing 'the sole reason for the third trimester abortions reported in that particular study was fetal demise.' What we know from the mouths of abortionists themselves shows this to be a farce. We need only read Dr. Marvin Haskell’s presentation on his intact dilation and extraction method (also known as partial-birth abortion) to see his admission that he and others perform this method on living babies well beyond 24 weeks gestation. And who can forget Ron Fitzsimmons, the executive director of the second largest 'trade association' of abortion providers, admitting that the 'vast majority' of these abortions are done on 'healthy mothers' with 'healthy fetuse' at '20 weeks or more along.' What’s more, Kansas, one of the few states to impose a reporting requirement for partial birth abortions, learned during its first year of reporting that every one of the 182 partial birth abortions that year was done for 'mental health reasons.'

"On personhood: American law recognizes an unborn child as a person in inheritance disputes, as a plaintiff in paternal wrongful death actions, as a person who can be represented by a court-appointed guardian (this was mentioned in Roe), as a person who can be a victim of a crime of violence (fetal homicide laws), and more recently as a recipient of federally-subsidized healthcare. Abortion is the uncomfortable exception to the rule, not the rule. On democracy: Wendy Long makes a persuasive argument that Roe and its progeny are anti-democratic edicts from an unelected few. I would take the point further. The Supreme Court in Roe took abortion out of the hands of the people, but in Roe, and later in Stenberg, it vested abortion policymaking in the hands of abortionists by allowing the abortionist to determine when and whether each abortion would be legal or not. As Justice Kennedy wrote in his Stenberg dissent, “it is now Dr. Leroy Carhart who sets abortion policy for the State of Nebraska, not the legislature or the people.”

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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