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Finally, A Defense of the Right to Life April 20, 2007

Posted by Daniel Downs in abortion, Constitution, culture war, human rights, life, news, politics, right to life.
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On 18 April, the U.S. Supreme Court in Gonzales v Carhart defended the constitutionally guaranteed right to life of the partially born. In a 5-4 decision, Justice Kennedy wrote the majority opinion upholding criminal law against performing partial birth abortions. The opinion concentrated on three major issues to determine the constitutionality of the law. The issues were whether the law met Roe v Wade’s three-part test; whether it was vague and caused an undue burden on a woman seeking an abortion; and whether it imposed a substantial obstacle to late-term abortions generally.

The Partial Birth Abortion Act, which became public law in 2003, met the Roe test. The justices found the law was clear about what was prohibited, what was permissible, and the penalty for breaking the law. It restricted only an abortion of a living partially delivered fetus, and the restrictions were clearly defined. Because the law prohibited only this procedure as defined, the Court saw no other obstacles to women seeking abortions.

Justice Ginsburg wrote the dissenting opinion. Her primary focus was on the presumed failure of the Court to enforce the health of the women criteria of Roe. She argued that better qualified doctors were of the opinion that Partial Birth Abortion was the safest procedure. Her definition of best qualified were those who regularly performed the procedure. Yet, the balanced reasoning of Justice Kennedy recognized the considerable disagreement among all medical practitioners both in past and present cases. To err on the side of women’s health sounds good. When weighed against alternative methods available and the long-term social consequences, the majority of justices did not consider health a substantial issue.

Did the Court really show disregard for the welfare of women as dissenters accuse? If you follow Ginsburg, only the partial birth abortion doctors could know best; therefore, the Court did. Justice Kennedy pointed out the law already has a provision protecting women whose physical life is endangered. Therefore, the Court did not disregard women’s health.

Justice Kennedy gave considerable attention to the third part of the three Roe test mentioned above. The three-part test as identified in case of Planned Parenthood of Southeastern Pa. v. Casey is as follows:

“First, a woman has the right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State. Second, the State has the power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering the woman’s life or health. And third, the State has legitimate interests from the pregnancy’s outset in protecting the health of the woman and the life of the fetus that may become a child.”

As stated before, the Court found the law met all three parts. The Court focused on the State’s interest in the protecting the life of the fetus in order to correct a problem perpetuated by Roe and subsequent rulings. Agreeing with the decision in Casey, Kennedy wrote, “The Court’s precedents after Roe had ‘undervalue[d] the State’s interest in potential life.’” Here the Court agreed with Congress that killing partially delivered babies can only result in a dehumanize society. As such, protecting newborns and other vulnerable lives may become more difficult. Human dignity has already begun to diminish. We have witnessed during the past ten years assisted suicides and the euthanasia of Terri Schiavo. In other countries like Belgium and Netherlands, the elderly have already become victims of state mandated euthanasia.

In furthering the protection of life and human dignity, the Court ignored Roe’s past viability precedent, which Ginsburg also criticized. The focus remained on the partially delivered baby before an abortion procedure is performed. The Court supports Congress’ intent to make a clear distinction between infanticide and abortion. Therefore, the statement:

“The Act applies [to] both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism within the womb, whether or not it is viable outside the womb,”

simply means once a baby is partly delivered as defined by the law, its life is protected by the State. The developing human has a right to the possibility of a long and normal life. Although not mention by the Court, current medical technologies already exist to handle premature birth. No reason exists for a partial delivery to occur other than for life.

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