Oral arguments in Gonzales v. Carhart—a Catholic Legal Theory (based on reality) Perspective

I just had the opportunity to listen to the oral arguments held at the Supreme Court a few weeks ago on the new partial-birth abortion case, Gonzales v. Carhart. It was ear and eye opening to listen to how highly intelligent people relied on euphemism (e.g., “fetal demise”) to escape coping with the reality of what is at the core of the case and, therefore, at the heart of abortion itself—human life. I hasten to add that some of the participants would periodically indicate or otherwise suggest that two human lives are involved in every abortion case that is litigated; however, others could not or would not make this concession.

Very early on in the oral argument the listener hears a discussion about dismemberment, but what is being dismembered is not mentioned. The object/subject of this procedure is left to the imagination of the listener to identify. But, with patient listening, the identity of the object/subject becomes clear; however, with the increase in this clarity, the efforts by some to fortify the conclusion that it is not human, or at least outside the scope of Constitutional protection, intensify. Some of the presentations are concrete when they focus on “the health of the woman (mother?)”; however, they become more abstract when the “other entity” is mentioned.

I was particularly struck by Justice Steven’s remark about whether the “other entity” is identified as a child or as a fetus might depend on whether it is more than half-in or half-out of the woman just prior to the moment of “cranial evacuation.” It was also sobering to hear Justice Ginsburg note that any “medical procedures” take place inside of the woman’s (mother’s) womb are permissible since they cannot be considered infanticide. These particular discussions introduced two other phrases that captured my attention: the “spatial line” and the “anatomical landmark”. In other words, the geographic location (something which I have previously addressed in earlier discussions about abortion and the law) may have a bearing on the legality or illegality of the abortion procedure and the “rights” under review by a court. However, I find that this preoccupation with geography dismisses the reality that this and all abortion cases ultimately deal with the lives of two human beings rather than one. The problems that geography poses for Constitutional law has been previously demonstrated in cases like Dred Scott v. Sanford. Moreover, I find that the legal fictions built upon these troublesome euphemisms mask the awkward reality that one human being, in the minds of some lawyers, can be sacrificed so that the other human being, the woman, may have a better chance at survival in some hypothetical situation. This point becomes all the more poignant when one realizes that what challenges the survival of the second may itself be a fiction—but a fiction which nonetheless permits the sacrifice of the first human being in any case.

It was also sobering to hear the lawyer from the Center for Reproductive Rights, who argued the case on behalf of the plaintiffs, state that some abortion procedures can lead to “consequences [that] are devastating.” Devastating for whom, I might ask? Any abortion procedure—be it completed inside the womb or outside the womb—is always devastating for the baby. In this regard, I found Justice Stevens’ characterization of the partial-birth (D&X method) abortion dealing with an entity “inches away from becoming a person” perplexing. Again, the legal fiction that defies fact still carries the day for some. I found Solicitor General Clement’s different formulation—“inches away from being born”—more accurate. For some of those involved with the oral argument, there also seemed to be confusion about whether the entity that could be sacrificed is in fact “living.” This confusion became evident in the discussion about “fetal viability.” A brief consult with any basic medical textbook on human embryology will clarify the matter: the fetus is a human life—it is not some tissue or anything else. It is and remains human life, the very human life that we all represent. How the Court will decide this case remains to be seen. But the conclusion reached by Dickens’ Mr. Bumble about the law on certain matters suggests something more clear and tangible about the law when it relies not on fact but on a fiction that defies objective fact. And, from my perspective, this is something that the law cannot afford to be when human life is at stake.   RJA sj