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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 23, 2007
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Topic category:  Other/General

“Intact D & E” is NOT a “Civil” Liberty

It is the constitutional foundation of Roe v. Wade that cannot withstand inspection because it is illusory.

The Founders declared America’s independence based upon a common belief in God-given rights to life, liberty and the pursuit of happiness. They revered, instead of denied or doubted, “the Creator.”

To be sure, Americans then and since have wanted to control their own destiny as much as reasonably possible. But that desire did not prohibit government from drafting men into military service on more than one occasion (even though military service, like pregnancy, can be hazardous to health and even life) or imposing restrictions upon abortion until the United States Supreme Court created a constitutional right to abort a pregnancy by reading it into the Constitution (NOT a prescribed method of amending the Constitution).

Neither the Bill of Rights nor the Fourteenth Amendment specified any such “right” and nothing in the history of either of them suggested any intention to create such a “right.” But a majority of the then United States Supreme Court Justices purported to find it in things called “interstices” and the people’s elected representatives suddenly were deprived of the power to determine when the right to life became effective, fetuses were treated as unworthy of the right to be born, and pregnant women were empowered to have their pregnancies terminated for any reason or no reason.

The Preamble to the Constitution proclaimed that the Constitution was established ‘to secure the Blessings of Liberty to…our Posterity” as well as “ourselves,” but a benighted Supreme Court majority still have denied that “posterity” the right to continued life not only when that continued life endangers a mother-to-be’s life, but also until viability and even after if a mother-to-be’s health is in any way adversely impacted by continued pregnancy.

It is rank judicial activism ascendant and, on a continued Supreme Court judicial activist majority, it is dependent.

Former American Civil Liberties Union counsel and current Associate United States Supreme Court Justice Ruth Bader Ginsburg is furious instead of infuriating these days. When a majority of the United States Supreme Court justices voted to uphold the federal partial-birth abortion ban, Justice Ginsburg wrote an angry dissent in which Justices Stevens, Souter and Breyer joined.

The majority opinion did not overrule Roe v. Wade, but never did it reaffirm it, to the consternation of the dissenters.

The impassioned dissent reflected a growing fear (hopefully, well-founded) that the judicially-created “constitutional right” to abort a pregnancy for any reason or no reason eventually may be judicially withdrawn (prospectively, to be sure) and the people’s elected representatives again will be empowered to regulate abortion from conception as well as frustration that the Supreme Court focused on the specific nature of what pro-abortion people euphemistically call a medical procedure and decided that the people’s elected representatives could ban it.The dissent: “One wonders how long a line that saves no fetus from destruction will hold in face of the Court's ‘moral concerns.’… The Court's hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label ‘abortion doctor.’… A fetus is described as an ‘unborn child,’ and as a ‘baby’…; second-trimester, previability abortions are referred to as ‘late-term’…; and the reasoned medical judgments of highly trained doctors are dismissed as ‘preferences’ motivated by ‘mere convenience’…. Instead of the heightened scrutiny we have previously applied, the Court determines that a ‘rational’ ground is enough to uphold the Act…. And, most troubling, Casey's principles, confirming the continuing vitality of ‘the essential holding of Roe,’ are merely ‘assume[d]’ for the moment…, rather than ‘retained’ or ‘reaffirmed,’ Casey, 505 U.S., at 846.”

The dissent reminisced that in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 844 (1992), the Court had reaffirmed Roe v. Wade; “endeavored to provide secure guidance to ‘[s]tate and federal courts as well as legislatures throughout the Union,’ by defining ‘the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures”; and confirmed that "the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child."

A fetus was treated as alive, the dissent conceded, but child status was not recognized before birth (as though a fetus is a stem cell that can develop in several different ways instead of only one).

The health of the mother had trumped the life of the fetus and the dissenters want to keep it that way. The dissent put it this way: “Of signal importance here, the Casey Court stated with unmistakable clarity that state regulation of access to abortion procedures, even after viability, must protect ‘the health of the woman.’”

The dissenters wanted the Court to follow Stenberg v. Carhart, 530 U.S. 914 (2000), in which “the Court invalidated a Nebraska statute criminalizing the performance of a medical procedure that, in the political arena, has been dubbed ‘partial-birth abortion,’ on the ground that “it lacked the requisite protection for the preservation of a woman's health.”

Since the majority ruled otherwise, the dissenters described the majority decision as “alarming,’ because: “It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health.”

The dissent deemed the majority decision as a “[r]etreat[] from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman's health” and insisted that the ban “would not survive under the close scrutiny that previously attended state-decreed limitations on a woman's reproductive choices.”

The essence of the dissent’s argument is that in the absence of a health exception a pregnant woman is deprived of “control over her [own] destiny.”

The dissent put it this way: “‘There was a time, not so long ago,’ when women were ‘regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution.’…Those views, this Court made clear in Casey, ‘are no longer consistent with our understanding of the family, the individual, or the Constitution.’… Women, it is now acknowledged, have the talent, capacity, and right ‘to participate equally in the economic and social life of the Nation.’… Their ability to realize their full potential, the Court recognized, is intimately connected to ‘their ability to control their reproductive lives.’… Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature….”

Stated more succinctly, the dissent’s position is that without an unfettered right to end her pregnancy for any health reason, a woman is not in control of her destiny and government has no more interest in protecting the life of an unborn baby than it does in regulating cosmetic surgery.

The dissent objected that a woman must not be “force[d]…to resort to less safe methods of abortion, noted that the Court had held in Stenberg that a statute banning what the dissent preferred to refer to as “intact D&E” was constitutionally deficient for lack of a health exception and supported a health exception as constitutionally required “as long as ‘substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health.’”

The dissent’s position: "The word 'necessary' in Casey's phrase 'necessary, in appropriate medical judgment, for the preservation of the life or health of the [pregnant woman],' cannot refer to an absolute necessity or to absolute proof. Medical treatments and procedures are often considered appropriate (or inappropriate) in light of estimated comparative health risks (and health benefits) in particular cases. Neither can that phrase require unanimity of medical opinion. Doctors often differ in their estimation of comparative health risks and appropriate treatment. And Casey's words 'appropriate medical judgment' must embody the judicial need to tolerate responsible differences of medical opinion ... ."

The dissent insisted that "'numerous' ‘extraordinarily accomplished’ and ‘very experienced’ medical experts explained that, in certain circumstances and for certain women, intact D&E is safer than alternative procedures and necessary to protect women's health.”

The dissent:

“According to the expert testimony plaintiffs introduced, the safety advantages of intact D&E are marked for women with certain medical conditions, for example, uterine scarring, bleeding disorders, heart disease, or compromised immune systems…. Further, plaintiffs' experts testified that intact D&E is significantly safer for women with certain pregnancy-related conditions, such as placenta previa and accreta, and for women carrying fetuses with certain abnormalities, such as severe hydrocephalus….

“Intact D&E, plaintiffs' experts explained, provides safety benefits over D&E by dismemberment for several reasons: First, intact D&E minimizes the number of times a physician must insert instruments through the cervix and into the uterus, and thereby reduces the risk of trauma to, and perforation of, the cervix and uterus--the most serious complication associated with nonintact D&E….. Second, removing the fetus intact, instead of dismembering it in utero, decreases the likelihood that fetal tissue will be retained in the uterus, a condition that can cause infection, hemorrhage, and infertility…. Third, intact D&E diminishes the chances of exposing the patient's tissues to sharp bony fragments sometimes resulting from dismemberment of the fetus…. Fourth, intact D&E takes less operating time than D&E by dismemberment, and thus may reduce bleeding, the risk of infection, and complications relating to anesthesia….

The majority ruled that the ban was constitutional despite “medical uncertainty.”

The dissent protested:

”Today's opinion supplies no reason to reject [District Court] findings [that some Congressional finding were erroneous]. Nevertheless, despite the District Courts' appraisal of the weight of the evidence, and in undisguised conflict with Stenberg, the Court asserts that the Partial-Birth Abortion Ban Act can survive ‘when ... medical uncertainty persists.’… This assertion is bewildering. Not only does it defy the Court's longstanding precedent affirming the necessity of a health exception, with no carve-out for circumstances of medical uncertainty…; it gives short shrift to the records before us, carefully canvassed by the District Courts. Those records indicate that ‘the majority of highly-qualified experts on the subject believe intact D&E to be the safest, most appropriate procedure under certain circumstances.’

“The Court acknowledges some of this evidence,… but insists that, because some witnesses disagreed with the ACOG and other experts' assessment of risk, the Act can stand…. In this insistence, the Court brushes under the rug the District Courts' well-supported findings that the physicians who testified that intact D&E is never necessary to preserve the health of a woman had slim authority for their opinions. They had no training for, or personal experience with, the intact D&E procedure, and many performed abortions only on rare occasions…. Even indulging the assumption that the Government witnesses were equally qualified to evaluate the relative risks of abortion procedures, their testimony could not erase the ‘significant medical authority support[ing] the proposition that in some circumstances, [intact D&E] would be the safest procedure.’”

Stated otherwise, the dissent believed that abortionists who performed partial-birth abortions (aka intact D&E’s) should be able to do so because they opined that it was the safest procedure in some circumstances.

The majority refused to allow the tail to wag the dog and the dissenters railed:

”The Court offers flimsy and transparent justifications for upholding a nationwide ban on intact D&E sans any exception to safeguard a women's health. Today's ruling, the Court declares, advances ‘a premise central to [Casey's] conclusion’--i.e., the Government's ‘legitimate and substantial interest in preserving and promoting fetal life.’ But the Act scarcely furthers that interest: The law saves not a single fetus from destruction, for it targets only a method of performing abortion…. And surely the statute was not designed to protect the lives or health of pregnant women…. In short, the Court upholds a law that, while doing nothing to ‘preserv[e] ... fetal life,’…bars a woman from choosing intact D&E although herdoctor 'reasonably believes [that procedure] will best protect [her].’”

But, by ruling that Congress is entitled to prohibit an abortionist from dilatong a mother's cervix, extracting the baby's body by the feet until all but the head has emerged, stabbing scissors into the head, sucking out the baby's brains, collapsing the baby's skull, and delivering the dead baby, the Court, like Congress, called attention to what a barbarity partial-birth abortion actually is and what a fetus actually is and that may well dissuade expectant mothers from choosing abortion and save many preborn babies from pre-birth death!

Ironically, the dissenters inadvertently helped the pro-life cause in discussing the unprohibited “nonintact D & E procedure”:

”As another reason for upholding the ban, the Court emphasizes that the Act does not proscribe the nonintact D&E procedure…. But why not, one might ask. Nonintact D&E could equally be characterized as ‘brutal,’…involving as it does ‘tear[ing] [a fetus] apart’ and ‘ripp[ing] off’ its limbs…. ‘[T]he notion that either of these two equally gruesome procedures ... is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational.’

“Delivery of an intact, albeit nonviable, fetus warrants special condemnation, the Court maintains, because a fetus that is not dismembered resembles an infant…. But so, too, does a fetus delivered intact after it is terminated by injection a day or two before the surgical evacuation,…or a fetus delivered through medical induction or cesarean…. Yet, the availability of those procedures--along with D&E by dismemberment--the Court says, saves the ban on intact D&E from a declaration of unconstitutionality….Never mind that the procedures deemed acceptable might put a woman's health at greater risk….”

The dissenters’ argument boils down to one horrible wrong justifies another horrible wrong and finding “intact D&E” more horrible that “nonintact D&E” is arbitrary.

The best solution is to reconsider the judicially-created constitutional right to abortion and to ban all horrible procedures, not to hold that omitting to ban one horrible procedure invalidates a ban on another horrible procedure (since the people’s elected representatives should be doing the relative “horribleness” evaluating).

What especially infuriated the dissenters was the thought that “moral concerns” were in play: “Ultimately, the Court admits that ‘moral concerns’ are at work, concerns that could yield prohibitions on any abortion….(‘Congress could ... conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.’). Notably, the concerns expressed are untethered to any ground genuinely serving the Government's interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent. See, e.g., Casey, 505 U.S., at 850 (‘Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.’); Lawrence v. Texas, 539 U.S. 558. 571 (2003) (Though ‘[f]or many persons [objections to homosexual conduct] are not trivial concerns but profound and deep convictions accepted as ethical and moral principles,’ the power of the State may not be used ‘to enforce these views on the whole society through operation of the criminal law.’ (citing Casey, 505 U.S., at 850)).”

In essence, the dissenters invoked judicial activist decisions to claim that hedonism must trump traditional morality.

Predictably, the dissenters snidely dismissed the idea that women have regretted having abortions:

“Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from ‘[s]evere depression and loss of esteem.’… Because of women's fragile emotional state and because of the ‘bond of love the mother has for her child,’ the Court worries, doctors may withhold information about the nature of the intact D&E procedure. … The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks…. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.

“This way of thinking reflects ancient notions about women's place in the family and under the Constitution--ideas that have long since been discredited….

“Though today's majority may regard women's feelings on the matter as ‘self-evident,’… this Court has repeatedly confirmed that ‘[t]he destiny of the woman must be shaped ... on her own conception of her spiritual imperatives and her place in society.’…”

The dissenters insist that an unviable fetus should be beyond governmental protection:

”In cases on a ‘woman's liberty to determine whether to [continue] her pregnancy,’ this Court has identified viability as a critical consideration. See Casey, 505 U.S. at 869-870 (plurality opinion). ‘[T]here is no line [more workable] than viability,’ the Court explained in Casey, for viability is ‘the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman. ... In some broad sense it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing child." Id., at 870.

“Today, the Court blurs that line, maintaining that ‘[t]he Act [legitimately] appl[ies] both previability and postviability because... a fetus is a living organism while within the womb, whether or not it is viable outside the womb.’… Instead of drawing the line at viability, the Court refers to Congress' purpose to differentiate‘abortion and infanticide’ based not on whether a fetus can survive outside the womb, but on where a fetus is anatomically located when a particular medical procedure is performed….”

No. It banned a particularly horrific procedure and the dissenters tried to recast that in bloodless terms, as abortionists customarily describe what they do, and treat it as no more barbaric than an alternative "medical procedure."

The dissenters obviously hoped that rare instancse would provide constitutional protection for all partial-birth abortions, but the majority decided otherwise:

”The Court further confuses our jurisprudence when it declares that ‘acial attacks’are not permissible in ‘hese circumstances,’i.e., where medical uncertainty exists. Ante, at 37; see ibid. (‘In an as-applied challenge the nature of the medical risk can be better quantified and balanced than in a facial attack.’). This holding is perplexing given that, in materially identical circumstances we held that a statute lacking a health exception was unconstitutional on its face. Stenberg, 530 U.S., at 930; see id., at 937 (in facial challenge, law held unconstitutional because ‘significant body of medical opinion believes [the] procedure may bring with it greater safety for some patients’ (emphasis added))….”

The majority upheld the ban because it had not been shown that the ban would be unconstitutional "in a large fraction of relevant cases."

The dissenters retorted: “It makes no sense to conclude that this facial challenge fails because respondents have not shown that a health exception is necessary for a large fraction of second-trimester abortions, including those for which a health exception is unnecessary: The very purpose of a health exception is to protect women in exceptional cases.”

But in reality a health exception became the norm rather than the exception and the majority obviously realized it.

The dissenters were unsatisfied that the majority ruled that the ban “is open to a proper as-applied challenge in a discrete case," arguing that a woman may need “access to the medical procedure at once and cannot wait for the judicial process to unfold.”

But courts are supposed to decide actual controversies, not hypothetical or contrived ones.

Ironically, the justices who would invalidate the ban in all instances chose to describe the majority as “gravely mistaken to conclude that narrow as-applied challenges are ‘the proper manner to protect the health of the woman.’”

The dissenters wrote of their last line of defense for a constitutional right to abortion: the judicial principle known as stare decisis.

But the Constitution obligates justices to support the Constitution, not stare decisis, and therefore some of the Court’s “grave” mistakes have been overruled instead of perpetuated forever.

The dissenters insisted the Court would virtually destroy itself if it overruled Roe v. Wade: “As the Court wrote in Casey, ‘overruling Roe's central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.’… ‘[T]he very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.’ ...(‘[T]o overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question.’).

Unsurprisingly, the defeated dissenters did NOT add that the Court’s overruling of Plessy v. Ferguson (a longer established precedent than Roe v. Wade) was catastrophic instead of correct, but DID assert that the majority decision “should not have staying power.”

When stare decisis suits judicial activists, they call it the critical consideration. But when it doesn’t (for example, when there were enough votes to overrule the case upholding the constitutionality of criminalizing homosexual behavior), it is NOT critical to them.

Finally, the dissenters charged the majority with being “irrational.”

The psychiatrists call that projection.It is the constitutional foundation of Roe v. Wade that cannot withstand inspection because it is illusory.

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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