What the Partial Birth Abortion Ruling Means

Here’s what last week's Supreme Court decision in Gonzales v. Carhart, the “partial birth abortion case”, means…

1. It doesn't mean that there has been any change in the controlling precedent of American abortion law, the 1992 Planned Parenthood vs. Casey decision authored by Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter…

It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman.s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman.s life or health. And third is the principle 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. These principles do not contradict one another; and we adhere to each.

2. Lost in most of the MSM coverage has been Gonzales v. Carhart's major holding: the courts don't get an extra veto over the lawmaking process, to be applied at their discretion, when the issue of abortion is involved.

Gonzales v. Carhart is not the final word on any partial birth abortion procedure. Women may still seek the procedure in individual cases, and courts might still yet rule that the Federal ban cannot be enforced under certain circumstances. What the Carhart ruling does say is that the courts cannot use the existence of exceptions to strike down the law as a whole. In legalese, the “facial” challenge to the law has been rejected, but “as applied” challenges are still possible. Ed Whelan of the Ethics and Public Policy Center has much more on this central issue here.

3. National Review Online's editorial on the ruling provides the best explanation of why the "intact dilation and extraction" procedure that is the object of the Federal ban was chosen for legislative action. If singling out one late-term procedure for restriction seems absurd, it is because the legal reasoning applied to abortion matters has been absurd -- and not at all scientific.

Intact dilation and extraction, which begins with the delivery of an unborn child, involves a legitimate gray area in the Supreme Court’s de-facto abortion jurisprudence (the dejure standard established in Casey nothwithstanding) that has placed political ideology over science. The courts have held that the life of a fully viable human being is not always protected by law, depending on the location of that life. An 8 3/4 month old fetus in the womb? Not protected. A 6 month old premature baby, one second after delivery? Protected. A 6 month old fetus, one second before an emergency premature delivery? Not protected. And a 6 month old baby in the process of being delivered?

That is the question the Federal partial birth abortion ban was designed to address.