Gonzales v. Carhart: “Denying the Right to Choose” or “Denying the Right to Live”

I would like to thank the various contributors to the discussion on Gonzales v. Carhart, the recent Partial Birth Abortion case decided this past Wednesday. I need to study the opinions in greater detail, but it appears that some members of the Court are beginning to consider in a public forum the nature of the object who always suffers from any abortion, namely a young human life. I am particularly grateful to Michael Scaperlanda for posting the link to his article co-authored with John Breen. Their essay raises this important question that the dissenters in Gonzales v. Carhart astutely avoid.

The decision in Gonzales v. Carhart will be discussed for some time to come, and I think it will be a major issue debated by those seeking public office in the Presidential and Congressional elections of next year. Major newspapers, like the New York Times [HERE] and the Boston Globe [HERE], through editorials, are already commenting on the decision probably with the desire of helping to direct and influence the inevitable future debate.

My purpose in writing today is to comment on some of the problems with the New York Times editorial. The first issue involves an acknowledgement on how the Times influences the nature of this important debate: it’s all about “a woman’s right to make decisions about her health.” If that were the issue that the decision in Gonzales v. Carhart was about, the Times might be justified in its conclusion that the decision is fundamentally dishonest. But the decision is not fundamentally dishonest because it demonstrates that the controversy involves much more than “a woman’s right to make decisions about her health.” It involves the lives of millions of children who have been killed by abortion. Since Roe was decided in 1973, it is estimated that at least forty million “legal” abortions have been performed in the United States. This means that forty million children have had their lives snuffed out by the legal fictions established and sustained by Roe.

The Times also expresses its alarm about the undermining of judicial precedent by “gutt[ing] a host of thoughtful lower federal court rulings, not to mention past Supreme Court rulings.” I am curious to know which ones the Times has in mind? It probably does not have in mind the failure to follow judicial precedent when Lawrence gutted Bowers.

The Times then argues that the majority opinion in Gonzales v. Carhart severely erodes the requirement of Roe that “all abortion regulations must have an exception to protect a woman’s health.” In offering this interesting interpretation of Roe, the Times also avoids the question the majority in Roe evaded, namely: what is the status of the fetus? If the fetus is a person, then there would be due process issues for protecting the life of the fetus as Justice Blackmun acknowledged in a footnote. But this crucial—yes, vital—question of the personhood of the fetus was sidestepped; consequently, it would be improper to criticize the Gonzales v. Carhart majority for severely eroding “rights” that are the fiction of the faulty judicial reasoning that underpins Roe. In this context, we should recall the dissent of Justice Byron White in the companion case to Roe, Doe v. Bolton, in which he warned that the majority’s decision was not really sound judicial reasoning but “an exercise of raw judicial power.” If the Times were in fact concerned about the severe erosion of legal reasoning and the rule of law, it might have considered the concerns expressed by Justice White. But, it did not.

In a tone suggesting that the majority decision is sexist (“these five male justices felt free to override the weight of medical evidence presented”), the Times continues its assertion that the decision was a judicial ratification of “the politically based and dangerously dubious Congressional claim that criminalizing the … [Partial Birth Abortion method] would never pose a significant health risk to a woman.” In presenting this claim that follows the script written by Justice Ginsburg, the editorial board relies on some unspecified “finding” attributed to the American College of Obstetricians and Gynecologists. Absent from the Times presentation and the dissent of Justice Ginsburg, however, are the pressing and important views of the American College of Pediatricians [HERE] which address the significant health risks to the fetus—or the child, if you prefer.

I search for evidence that the majority, moreover, considers women as “flighty creatures who must be protected by men.” But any kind of evidence supporting the take of the Times editorial eludes me.

A final point necessitating some discussion is the Times harsh criticism of the Bush administration and “other opponents of women’s reproductive rights” for the “big political victory they were hoping to get from the conservative judges Mr. Bush has added to the bench.” For the Times, this “political victory” erodes the court’s credibility, judicial integrity, and the rule of law. One could just as easily make the claim that Roe did precisely that, but then others, such as Justice White, have already pointed this out thirty-four years ago. But, following the Times’ logic, one could then argue that Stenberg and Lawrence were “political victories” which undermined the rule of law and judicial integrity. Perhaps the Times would counter by suggesting that those well reasoned opinions were necessitated by the dicta in Casey, which stated that at “the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life…”?

I believe that the debates begun in Roe and continued in Gonzales v. Carhart will persist. If my prediction is correct, it would be most helpful if the powerful news organs that have a strong influence on how the members of the public understand what is at stake in these important political debates present their points of view with objective and evenhanded analyses that avoid the kind of inflammatory rhetoric and inferior reasoning contained in the Times editorial.    RJA sj