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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 28, 2007
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How Significant Is Upholding the Federal Partial-Birth Abortion Ban?

Under the circumstances, the critical question is not whether Carhart is consistent with stare decisis, or stare decisis ante, but whether it is rightly decided.

Justice Ruth Bader Ginsburg's dissent in Gonzales v. Carhart, the United States Supreme Court decision upholding a federal-partial birth abortion ban that provides an exception for life but not health, called the decision “alarming” while insisting that not a single fetus will be saved by the decision.

Wendy E. Long, Judicial Confirmation Network general counsel, rigorously rebutted the rationale of the dissent, but agreed that the decision won’t save a single fetus (because an alternate procedure is available).

When judicial activist Justice Ginsburg and faithful Constitutionalist Wendy Long concur on a point involving abortion, disagreeing with them seems futile, but I fervently hope that this is the exception that proves the rule: Yes, there is an alternative abortion procedure available, but perhaps the focus on what partial-birth abortion actually is and the Supreme Court decision upholding the ban will dissuade expectant women from choosing abortion and inspire additional regulation and reconsideration of Roe v. Wade, the decision that created a constitutional right to abortion.

Mrs. Long began the pre-decision Federalist Society electronic debate on the constitutionality of the ban (http://www.fed-soc.org/debates/dbtid.1/default.asp) by describing partial-birth abortion—“a late-term abortion in which the baby[‘s]… skull is punctured and her brains vacuumed out so her body can be extracted (‘intact D&E’)”—and asking, “Americans, through their elected representatives, have banned this. Under Roe and Casey, why can’t they do that, and what abortions CAN Americans legally choose to ban, if they can’t ban ‘partial birth’?”

The alarmed dissenters opined that “nonintact D&E” is just as “brutal” as “intact D&E” (the euphemism for partial-birth abortion).

If expectant women think about this, fewer may choose abortion, proving Justice Ginsburg and Mrs. Long wrong in one respect.

The Federalist Society is hosting an online debate on the decision (http://www.fed-soc.org/debates/dbtid.3/trackback.asp). Pepperdine Law School Professor Doug Kmiec, Duke Law School Professor Erwin Chemerinsky, Georgetown Law Center Professor Randy Barnett and Mrs. Long have commented.

Predictably, they disagree (politely).

Professor Kmiec began this debate by asserting that the decision is consistent with the judicial doctrine known as stare decisis: “Carhart is a faithful application of the Casey precedent that reaffirms that the States ‘retain a critical and legitimate role in legislating on the subject of abortion. . . . The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential."

Professor Kmiec conceded that “Stenberg was not consistent with Casey” and proceeded to explain why Stenberg was wrongly decided: “It was never tenable for the Stenberg majority to interpret the Nebraska statute in a manner that implicated abortion procedures beyond the partial-birth practice. To reach that conclusion, the Stenberg Court had to both disregard the well-settled doctrine of constitutional avoidance and to thumb its nose at the State’s interpretation of its own law, and rather outrageously, even refuse to certify the Court’s strained construction about the meaning of the Nebraska statute to the Nebraska Supreme Court.”

All true, but Carhart obviously did not follow Stenberg and Professor Kmiec’s assertion that Carhart is “faithful to past precedent” and “merely implements the Casey balance that recognized that before viability, a state ‘may not prohibit any woman from making the ultimate decision to terminate her pregnancy,’ nor place an ‘undue burden’ upon that decision that creates a ‘substantial obstacle’ in her path” ignores Stenberg’s insistence on a statutory exception for health as well as life.

Professor Kmiec: “Yet, the State may pass ‘regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, [] express profound respect for the life of the unborn . . . .’ As Justice Kennedy reaffirmed in Carhart, Casey, in short, struck a balance. The balance was central to its holding.’ It is that balance which sustains the federal prohibition.”

But, until Carhart, the post-RoeSupreme Court had not approved a balance that lacked a health exception.

Professor Kmiec’s position—“Carhart is not ‘alarming’; it merely vindicates the balance that had been struck in Casey”—is unconvincing, given the claim of the four dissenters that they were alarmed and the majority’s striking of a balance in a new way, that is, without a statutory health exception.

But Professor Kmiec rightly celebrated Carhart as “vindicat[ing] the rule of law insofar as it reduces the number of occasions in which abortion jurisprudence is not subject to the generally applicable interpretive standards applied outside of the abortion context.”

Stated otherwise, Carhart stopped treating abortion as an exception to the canon of construction that the judicial activists had accomplished and they understandably found that “alarming,” but that is good news. Professor Kmiec: “It is an elementary rule that ‘every reasonable construction must be resorted to in order to save a statute from unconstitutionality.’ This basic principle of judicial humility was nevertheless disregarded in abortion cases. This disregard of the rule of law had been noted by Justice O'Connor, who in Thornburgh observed in dissent that an unacceptable bias against abortion restriction had been incorporated into the courts decisions. Said O'Connor: it was as if in abortion cases, the ‘canon of construction [was that] a permissible reading of the statute [was] to be avoided at all costs.’”

The pro-abortion plan to have the federal ban voided failed, because the majority refused to treat abortion as a special exception in statutory construction.

Professor Kmiec: “Likewise, in indicating that facial attacks are not the preferred means of constitutional adjudication, the Court was mitigating some of the confusion caused when the Court seemingly departed in some, but not all, abortion cases from the ‘heavy burden’ placed upon parties that seek to strike a legislative enactment in its entirety. The normal rule followed in Ohio v. Akron Center for Reproductive Health was that those making a facial challenge to a statute must show that no set of circumstances exists under which the act would be valid. By contrast, the plurality in Caseysuggested that the burden on the challenger would be reduced to determining whether there was an undue burden upon ‘a large fraction of the cases in which [the regulation] is relevant.’ There remains dispute and unclarity about what ‘large fraction’ is relevant or even why this specialized standard is warranted. In keeping with the restrained ethnic of the Roberts Court -- avoiding decisions on matters not squarely necessary to decide the case or controversy before it -- the Carhart majority, finding that the challengers had not come forward with proof that the federal ban would create an undue burden in a large fraction of the relevant cases (how ever that might be conceived), did not need to resolve the debate between those competing standards.”

Professor Kmiec noted that “Carhart does not preclude the proper application of a health exception,” and relied on that to treat it as unalarming and consistent with stare decisis.

Professor Kmiec: “The proper means to protect health in light of the balance struck in Casey is to focus on, as the Court said in Carhart, on the ‘discreet and well-defined instances [in which] a particular condition has or is likely to occur in which the procedure prohibited by the act must be used. In an as applied challenge the nature of the medical risk can be better quantified and balanced than in a facial attack.’ Justice O'Connor for a unanimous Court in Ayotte had confirmed that when a statute is found invalid as applied to a particular plaintiff it is not unconstitutional as a whole but merely invalidated as to the unconstitutional application to the fact situation before the Court. This had troubled the adjudication of the Court since Roe. Wrote Justice O'Connor in Ayotte, "we prefer [] to enjoin only the unconstitutional applications of the statute while leaving other applications in force. As Justice O'Connor explained, this would have been appropriate in Stenberg had either of the parties or the court asked for an appropriately refined remedy. It was that remedial refinement, and Justice O'Connor's instruction, that was followed in Carhart.” But that “remedial refinement” is rightly alarming to the judicial activists and a reversion to strict constructionism lacking in abortion decisions beginning with Roe.

Finally, Professor Kmiec rebutted the charge that Carhart demeans the status of women: “…Justice Ginsburg…. is mistaken to indulge the legal premise that equates the equal citizenship of women with the continued availability of a cruel and inhuman abortion practice. Her attempted reframing in the dissent of the abortion precedents from being anchored upon liberty and privacy [see Justice Blackmun in Roe] to the claim that partial-birth abortion vindicates "a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature” is unwarranted. No woman's equal citizenship should be made to depend upon the availability of a particularly heinous method of abortion or a woman's willingness to undergo it. It may well be that Justice Ginsburg is as frustrated, as am I and my women law graduates continue to be year after year, with corporations and law firms that do little or nothing to meaningfully structure work environments to make it possible for a woman to fully participate in the economic and social life of the nation without having to beg for special treatment, or, as is implied or even explicit, in Justice Ginsburg's equal citizenship remark, to face a choice between work and family that men do not have to face…” Professor Chermerinsky inisted that Carhart is NOT “consistent with the principle of stare decisis” and IS “a dramatic change in the law of abortion.”

Professor Cheremerinsky: “Stenberg v. Carhart declared unconstitutional a law that was almost identical to the statute upheld by the Court ….. Justice Breyer's majority opinion stressed that the Nebraska law was unconstitutional because it did not have a health exception and because it was broadly written to prohibit many abortion procedures. The federal statute had no health exception and though narrower than the Nebraska law, it still was more broadly written than Stenberg
would allow.”

Professor Chemerinsky found the majority’s “shift in approach” to be “[e]ven more troubling”: “Planned Parenthood v. Casey and Stenberg v. Carhart made clear that a law regulating abortion is facially unconstitutional if it creates an undue burden for some women. For example, the requirement for spousal notification was struck down in Casey because for some women, such as those in abusive relationships, it would be an undue burden. Stenberg
struck down the Nebraska law because for some women it was prohibiting the safest form of abortion.”
In addition, Professor Chemerinsky explained why the shift is “dramatic”: “In Gonzales v. Carhart
, the Court rejected a facial challenge and said that it had to be an as applied challenge. By that analysis, Casey would have come out differently and women for whom spousal notification was an undue burden would have had to make an as applied challenge. Stenberg, too, would have come out differently under Justice Kennedy's analysis in Wednesday's decision. Most telling, all four of the Justices in the majority from Stenberg who are still on the Court saw Wednesday's decision as a major departure from the prior case and the prior method of analysis.”

Further, Professor Chemerinsky argued that the as applied approach allowed in Carhart “makes no sense.”

What Professor Chemerinsky found sensible was “the woman and her doctor [deciding] the safest procedure” and denying the state any “interest in forcing the doctor to dismember the fetus in utero and remove it piece by piece….”

But the state does not force any women to have an abortion.

Professor Kmiec replied that Professor Chemerinsky’s “dramatic change” evaluation was the result of “over-reading,” insisting that “[k]eeping a doctor from spreading a pair of scissors in the back of the skull of a partially delivered child is a footnote,” and Professor Chemerinsky should “want to align himself -- at least in part -- with the innocent unborn, who have little or no political voice.”

Professor Chemerinsky was unconvinced and unmoved. He deemed “the shift from facial invalidation to requiring as applied challenges..very dramatic,” because “[i]t means that many more laws restricting abortion will be upheld,” probably including “both spousal notification and the Nebraska law in Stenberg…”; denied that “the fetus before viability [is] an ‘unborn child’ or… ‘unborn life’; and argued that “each woman [should] decide for herself how to regard the fetus before viability.”

Professor Chemerinsky is so enamored with the abortion choice that he even ignored the choice of delivery in trying to fend off the barbarism charge.

Professor Chemerinsky: “As to whether partial birth abortion is a barbaric procedure as Professor Kmiec claims, it must be remembered that the issue is not whether the fetus is going to be aborted, but how. In an abortion in the weeks right before viability, there are two choices. Dismember the fetus in utero and remove it piece by piece. This increases the risk of perforation of the uterus and is more dangerous especially for women with certain bleeding conditions and infectious diseases. The other procedure is to remove the fetus in tact and then abort it. Is one really more humane than the other? Ultimately, since abortion is legal at this phase of pregnancy the woman and her doctor should decide how it is going to be done, not Congress.”

But, the prohibition of the partial-birth abortion choice may have the salutary effect of reducing the number of abortions. Even though an alternative abortion procedure remains a legal option, the knowledge that partial-birth abortion is prohibited and the assertion by the alarmed minority justices that the alternative is equally “brutal” may dissuade expectant mothers from choosing abortion.

Professor Barnett tried to resolve the disputes between Professors Kmiec and Chemerinsky in Solomonic fashion: “Both of my friends, Doug Kmiec and Erwin Chemerinsky are partially correct. Doug is right that Carhart v. Gonzales does not directly threaten a women’s right to choose to have an abortion. Irwin is right that Carhart does change current law — in particular, the important holding of Stenberg v. Carhart — and, in my view, for the worse.”

Professor Barnett pleased (1) pro-lifers by saying that “by defining the ‘health’ of the mother so broadly, pro-choice advocates brought this problem on themselves,” because “a health exception [that] applies, for example, to the emotional health of the mother…is the exception that will always swallow the rule, as opponents of partial birth abortion rightly complain, and (2) pro-choicers by demonstrating that Carhartis not consistent with stare decisis: “To reach its result, the Court had to eviscerate the approach it had adopted in 2000, over Justice Kennedy’s strident dissent, in the case of Stenberg v. Carhart. (So much for stare decisis!) Put simply, in Stenberg, the Court held that, if there was substantial disagreement among medical authorities over whether a medical procedure such as this one was necessary to preserve the health of the mother, then a woman and her physician could make the choice. In Carhart, however, Justice Kennedy adopted a rational basis standard to uphold the judgment of Congress that such a procedure was never necessary to protect the health of the mother. This means that, contrary to Stenberg, whenever there is a substantial disagreement among medical authorities, Congress gets to make the decision. After all, however it decides it will be supported by some substantial body of medical opinion.”

In addressing the question of whether or not Carhart is “a departure from the Court’s prior abortion precedents,” Mrs. Long began by noting that those precedents are “so unclear and malleable from the start - in short, the antithesis of what a good judicial opinion should be,” because “the Court's entire abortion jurisprudence has, from its conception and infancy in 1973, been a sort of ultra vires exercise.”

Mrs. Long: “When a line of cases is fundamentally flawed and inconsistent with the text, history, and principles of the Constitution to begin with, the stare decisis analysis arises in an entirely different light.”

Exactly. The same is true of the line of cases beginning with Everson v. Board of Education, in which judicial activists rewrote the religious clauses of the First Amendment to mandate governmental neutrality between religion and ireeligion and to prohibit governmental support for religion generally. That’s what happens when the Court becomes a super legislature.

Mrs. Long mostly agreed with Professor Kmiec, but acknowledged that Carhart “departs from more recent abortion precedents - and thus arguably technically does not comport with stare decisis – [in] that Carhart appears to have ended the super-duper-privileged status of plaintiffs challenging abortion regulations, who recently have been successful with facial challenges to those laws without proving, as ordinary litigants must, that ‘no set of circumstances exists’ under which the law could be valid. In a narrow and technical sense, then, Carhart arguably departs from stare decisis because abortion plaintiffs were not held to this standard in Casey or Stenberg.”

That said, Mrs. Long took the perspective “that Carhart respects stare decisis in that it comports with the most important of the Court's precedents on the requirements for a facial challenge, United States v. Salerno. Earlier abortion cases had used the Salerno standard until, inexplicably, a majority went off the rails on the standard for facial challenges.”

Stated otherwise, Carhart is consistent with what stare decisis used to be!

Under the circumstances, the critical question is not whether Carhart is consistent with stare decisis, or stare decisis ante, but whether it is rightly decided.

Mrs. Long appreciated that.

Mrs. Long:

”’Disrespect for stare decisis’is an odd objection to a court decision that corrects previous errors and returns a line of jurisprudence to its correct constitutional moorings. If a decision is wrong, then stare decisis is not a compelling reason to pile up more wrong precedents. In addition, the amount of weight to place on stare decisis varies with the effect that the past precedents have had, and how well settled the law and society are as a result of them. It goes without saying that abortion law has been in complete turmoil, and our society is possibly even more divided and unsettled over the issue, than before Roe. Accordingly, Roe and Casey are not candidates for the stare decisis hall of fame. So even if Doug and I are wrong, and Carhart somehow, when the dust settles, appears to have shaved a sliver off of Roe and Casey and Stenberg, it is not the end of the world. Rather, one almost dares to hope it is the beginning of a new era of judicial restraint, and returning in some small way the right to choose abortion policy to the people through the process of representative democracy.”

United States Supreme Court justices are bound to support the Constitution, not perpetuate mistakes in the name of the judicial doctrine known as stare decisis.

Mrs. Long was cautiously optimistic: “One has a sense, therefore, Carhart emerges slightly from the muck and mire that has been the Court's abortion jurisprudence. Over time, a slight change like this can set us on a course to ultimately get things cleaned up and corrected. This is not a foregone conclusion, but a distinct possibility. The door is now open, for example, for states to go back and introduce new state prohibitions on partial birth abortion. The federal law was drafted so narrowly - necessarily so by Stenberg - that the practical effect of this decision is likely to be negligible on actual abortion practice. And, even if this law is effectively enforceable, as Justice Ginsburg noted in dissent, the Federal Partial Birth Abortion Act is not going to save the life of one unborn child. There are other ways to chop up a baby. So it's a very modest and technical legal step in correcting the extreme and incorrect state of abortion jurisprudence.”

To that end, Mrs. Long proceeded to eviscerate Justice Ginsburg’s attempt to find a defensible constitutional basis for abortion:

“The thing that was a bit startling about the opinions was the attempted re-tooling of the general pro-abortion rationale in Justice Ginsburg's dissent. Roe v. Wade and its progeny have long been a judicial fiat in search of a justification. Prior attempts to posit an abortion right in the fields of privacy and liberty, as the very bright Justice Ginsburg knows, lack intellectual rigor and judicial integrity, as many pro-choice legal scholars have themselves acknowledged. But the Ginsburg dissent is in a way, even less convincing. It might have been an amusing law review article 30 or 40 years ago, but it sounds strangely anachronistic to this female ear in 2007, and frankly, shocking as part of a Supreme Court opinion.
“Liberty and equality are in a sense two sides of the same coin, constitutionally speaking: we are free men (I use the term ‘men’ to mean humans; I count myself among such ‘men’) because we are equal under the Constitution, and we are equal because we are all free, in the important respects that our Constitution is able to vindicate those natural human freedoms.

“But nothing in the Constitution itself, or any statute or judicial decision, can change the fact that women have babies. Men do not.

“It does not detract from female liberty or equality under the Constitution that only women can have babies. The Constitution cannot do anything about it. The hard-core feminist rhetoric that the ‘right’ to have the brains vacuumed out of the skull of one's own baby is the cornerstone of ‘a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship’ is gravely misguided as a matter of law and as a matter of ethics.”

Stated otherwise, Justice Ginsburg complaint is against nature (dare I say God?) and a right to abortion was not incorporated in the Constitution when it was written and ratified, or when the Bill of Rights was written and ratified, or when the Fourteenth Amendment was written and ratified.

Professor Kmiec concurred with Justice Ginsburg that “women have ‘to face a choice between work and family that men do not have to face,’” but Mrs. Long rejected that perception as invalid and inadequate for Justice Ginsburg’s purpose (justifying abortion under the Constitution).

Mrs. Long:

”Here, I have to depart from Doug's view. Of course, even if such frustrations were valid, they would not justify the killing of innocent human beings, which would be the argument that Justice Ginsburg is advancing. But I do not think the frustrations are themselves valid. Men face analogous choices, given the limits of biology: there is only one place their bodies can be at any given time. They can be at home, caring for children (and many men I know are doing this ably and admirably). Or they can be at work. Was it unfair to them that they had to choose between child care and work? I don't think so. Nor is it unfair for a woman to have to choose whether to work or take care of children - or indeed, a third choice: try to do both at once. It is amazing to me that Justice Ginsburg, and Doug, don't see it as a victory that women have this fantastic array of choices before them. The expansion of these choices is perversely now construed as imposing inequality?

“Twisting this state of affairs into the contention that women somehow lack equality or autonomy because they cannot simultaneously choose everything, seems to me mistaken, and a negation of ‘choice’ itself. It is not pregnancy, moreover, that even implicates this choice: the unborn baby, although a separate person, can easily go with his mother to work, and a pregnant woman can do pretty much anything she could do, work-wise, while not pregnant. It is only after the birth of a child (which one can give up for adoption - yet another ‘choice’ - if one does not want to move down the decision tree of choices to address the child care-versus-work choice) that the ‘choice between work and family’ that Doug refers to springs into being.

“And, as I have said, that choice presents an embarrassment of riches, equally, for men and women.”

Professor Kmiec graciously acquiesced:

”Wendy's gift of clarity to this tangle of caselaw is most welcome and her treatment of the stare decisis point is impeccable.

”On the re-centering of the abortion right on equality, I affirm that no claim of equality can constitutionally, ethically, or logically justify the taking of another human life. Justice Ginsburg would fault this self-evident truth only because the life of the unborn child is to her and other proponents of abortion not self-evident. How one gets past this profound difference in view remains, and perhaps will always remain in this earthly exile, a mystery. Democracy at least allows us the opportunity to offer and to propose to our fellow citizens the best evidence -- from reason and faith -- for our mutual consideration and decision. Carhart's reinforcement of that democratic opportunity is welcome by clearing away some of the judicially-crafted clutter that precluded it is welcome."

Time will tell how significant the Carhart decision is.

May its significance be enormous, as a precedent for what the dissenters really find “alarming”: the possibility of removal of judicially-crafted clutter,” return to strict constructionism and restraint of judicial activism.

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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