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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:  April 20, 2007
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Topic category:  Other/General

Partial Birth Abortion Cases: Dignity, Up; Barbarity, Down

President Bush appointed strict constructionists, while former President Clinton appointed judicial activists who favor the special interest known as the abortion industry.

When considering who should be the next President of the United States, remember that the next President is likely to make a critical Supreme Court appointment (or more).

Strict construction, and human dignity, won out, barely, over judicial activism and barbarity. The challenges to the constitutionality of the Partial-Birth Abortion Ban Act, passed by Congress and signed by President George W. Bush in 2003 were rejected, 5 to 4, by the United States Supreme Court, in Gonzales v. Planned Parenthood and Gonzales v. Carhart, The act prohibits a doctor from performing a partial birth abortion unless the pregnant woman’s life is in danger.

Pro-life Wendy Long, General Counsel of the Judicial Confirmation Network and defender of the federal partial birth abortion ban in the Federalist-Society debate on abortion and the courts (, immediately issued this brief press release "At last, a modest decision based on principles of judicial restraint: allowing 'we the people' to make laws supported by a clear majority of Americans without interference from unelected judges. A good day for democracy and for the Constitution."

Lower courts had overturned the act on the grounds that the term “partial birth abortion” does not clearly define the prohibited procedure and that Congress failed to include an exception for the mother’s health (the ground on which the Supreme Court struck down a similar Nebraska law three years earlier in Stenberg v. Carhart).

President Bush lauded the decision:

"I am pleased that the Supreme Court upheld a law that prohibits the abhorrent procedure of partial-birth abortion. Today's decision affirms that the Constitution does not stand in the way of the people's representatives enacting laws reflecting the compassion and humanity of America. The partial-birth abortion ban, which an overwhelming bipartisan majority in Congress passed and I signed into law, represents a commitment to building a culture of life in America.

"The Supreme Court's decision is an affirmation of the progress we have made over the past six years in protecting human dignity and upholding the sanctity of life. We will continue to work for the day when every child is welcomed in life and protected in law."

Mrs. Long elaborated in a bench memo posted at, focusing on (1) what partial-birth abortion, simply identified as a medical procedure by partial-birth abortion supporters, actually is and (2) the critical part of President Bush's Supreme Court appointments to upholding the ban:

"Did anyone seriously think that the Constitution requires us to let abortionists vacuum the brains of late-term unborn children out of their skulls? What is remarkable is not the Court's holding today, but the fact that anyone would think such a barbaric procedure, opposed by overwhelming majorities of Americans, is something the Constitution puts off limits for the people to decide through their elected representatives.

"President Bush's appointees to the Court — the Chief Justice and Justice Alito — have shown themselves to be adherents of judicial restraint, who respect the power of the people to make their own choices on policy questions. The Roberts Court has taken a positive, modest step in restoring a sense of reason and principle to constitutional adjudication on abortion. Liberal pro-abortion extremists no longer have a blank check to railroad over the will of democratic majorities of the American people, and pro-abortion plaintiffs no longer have a privileged status as litigants in overturning reasonable abortion laws like this one based on irrationality and constitutional error. And the Chief Justice has once again proven to be a wise leader of the Court: assigning this opinion to Justice Kennedy underscores that even Justices not "in the mold of Scalia and Thomas" are capable of upholding democracy and the Constitution when it comes to abortion."

To be sure, the Far Left is furious.

In a second bench memo, Mrs. Long explained why:

"The Far Left statements are flying — Edwards, Obama, Planned Parenthood, NARAL — all foaming at the mouth, just because the Court showed a little bit of restraint and respect for democracy. These liberal presidential candidates and pro-abortion extremists These liberal presidential candidates and pro-abortion extremists know they cannot convince the American people that partial birth abortion is a positive good. They prefer to just get a handful of unelected judges to quietly implement extremist policies that can't withstand rational debate and indeed, have failed both in the court of public opinion and in the legislative arena, where elected officials are accountable for their actions."

The Founders believed in God-given rights to life, liberty and the pursuit of happiness.

The pro-abortion crowd blithely claims a constitutional right to privacy trumps all and covers even a "medical procedure" as barbaric as partial-birth abortion. For them, "medical procedure" is a soothing euphemism, just as "the Final Solution" was a much more palatable euphemism for extermination of Jews.

In commenting on Democrat presidential aspirant Hillary Clinton's reaction to the decision in a third bench memo, Mrs. Long stressed the verbal legerdemain of pro-abortionists (like focusing on choice instead of the choices):

"Hillary Rodham Clinton — not to be outdone by the other Democratic presidential candidates in condemning the pro-democracy Supreme Court ruling restoring choice to Americans on the matter of whether to ban partial birth abortion — shows yet again how the Left mangles the ordinary meaning of words when it comes to abortion. True to the tradition that invokes the words 'choice' and 'health' when they have nothing to do with either, she fumes: 'Today’s decision blatantly defies the Court’s recent decision in 2000 striking down a state partial-birth abortion law because of its failure to provide an exception for the health of the mother.' (emphasis added)

"The Supreme Court overrules, distinguishes, and upholds prior precedents. Sometimes it ignores them. But it does not — cannot — 'defy' them. The Court has the authority to overrule a prior precedent that it concludes is in error. However you want to characterize today's decision, it did not 'defy' the 2000 Stenberg decision. It's probably just a word that worked well in her latest focus group. That's reason enough for her to 'defy' her legal training."

Edward Whelan, president of the Ethics and Public Policy Center, wrote the following opposing view op/ed for USA Today, celebrating the ban of the "barbaric practice" and anticipating more abortion curbs:

"All Americans should welcome the Supreme Court ruling upholding the federal ban on partial-birth abortion.

"Let's begin with the facts. Partial-birth abortion is a method of late-term abortion in which the abortionist dilates the mother's cervix, extracts the baby's body by the feet until all but the head has emerged, stabs scissors into the head, sucks out the baby's brains, collapses the baby's skull, and delivers the dead baby. This atrocity is inflicted up to 5,000 times a year in this country — generally on healthy babies of healthy mothers.

"Americans on both sides of the abortion divide recognize that partial-birth abortion is barbaric. That's why bipartisan majorities in Congress, including Democrats such as Senate Majority Leader Harry Reid and Senate Judiciary Committee Chairman Patrick Leahy, voted for the partial-birth law.

"The five justices in the majority who upheld the law exercised judicial restraint and properly deferred to the democratic process. The four liberal judicial activists in dissent — led by Ruth Bader Ginsburg, who maintains that the Constitution even requires taxpayer-funded abortion — sought to impose their own extremist agenda.

"In its 1973 ruling in Roe v. Wade, the Supreme Court imposed on the American people a radical regime of unrestricted abortion. Wednesday's ruling offers some hope of moderating that regime.

"In particular, the court made clear that laws regulating abortion should generally be attacked only in their application to particular circumstances.

"Americans now have the green light to enact state partial-birth bans modeled on the federal ban. Legislatures should also pursue more robust informed-consent rules on, for example, ultrasound imaging and fetal pain.

"More broadly, the ruling shows that the court's decades-long power grab on abortion has failed to generate a coherent consensus among the justices. With further improvements in the court's makeup, abortion policy can be restored to where it belongs: to citizens acting through their legislators."

The key is "further improvements in the court's makeup."

It is not a coincidence that President Bush's two Supreme Court appointees (Chief Justice Roberts and Justice Alito) voted to uphold the ban, while former President Clinton's two Supreme Court appointees (Justices Ginsberg and Breyer) voted to strike it down. President Bush appointed strict constructionists, while former President Clinton appointed judicial activists who favor the special interest known as the abortion industry.

When considering who should be the next President of the United States, remember that the next President is likely to make a critical Supreme Court appointment (or more).

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,,, and 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

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