Gonzales v. Carhart is a 2007 Supreme Court case in which the Court upheld the Partial-Birth Abortion Ban Act of 2003.
Both the pro-life and pro-choice communities reacted strongly to the case, seeing it as a shift in the Court’s perspective on abortion. As the New York Times explained, the decision was “the first in which the Court has upheld a ban on a specific method of abortion.” Planned Parenthood describes the case as follows:
April 18, 2007: The U.S. Supreme Court upholds the federal abortion ban, which criminalizes abortions in the second trimester of pregnancy that doctors say are safe and the best to protect women’s health.
While it may be true that Gonzales represented a shift in philosophy, the abortion method it banned was so specific as to make the Court decision almost meaningless on a practical level.
First, since the doctor must “vaginally delive[r] a living fetus,” the Act does not restrict abortions involving delivery of an expired fetus or those not involving vaginal delivery,e.g., hysterotomy or hysterectomy. And it applies 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. Second, because the Act requires the living fetus to be delivered to a specific anatomical landmark depending on the fetus’ presentation, an abortion not involving such partial delivery is permitted. Third, because the doctor must perform an “overt act, other than completion of delivery, that kills the partially delivered fetus,” the “overt act” must be separate from delivery. It must also occur after delivery to an anatomical landmark, since killing “the partially delivered” fetus, when read in context, refers to a fetus that has been so delivered. Fourth, given the Act’s scienter requirements, delivery of a living fetus past an anatomical landmark by accident or inadvertence is not a crime because it is not “deliberat[e] and intentiona[l].” Nor is such a delivery prohibited if the fetus [has not] been delivered “for the purpose of performing an overt act that the [doctor] knows will kill [it].”
Okay, let’s review. Gonzales does not ban all intact dilation and extraction (D&E) procedures. The case bans procedures in which:
- A living fetus is vaginally delivered
- To a specific anatomical landmark (“either the fetal head or the fetal trunk past the navel is outside the body of the mother”) and is then
- Killed by an “overt act” (i.e. inserting scissors into the fetus’s skull) and
- The vaginal delivery was “deliberate and intentional.”
In other words, it is still legal to perform a D&E as long as the fetus is not purposefully delivered to a certain point. It is still legal to perform a D&E on a fetus purposefully partially delivered but with the navel still inside the mother’s body. It is still legal to perform a D&E on a fetus wholly but accidentally delivered. Indeed, the Court specifically addresses this possibility:
[Respondents] contend–relying on the testimony of numerous abortion doctors–that D&E may result in the delivery of a living fetus beyond the Act’s anatomical landmarks in a significant fraction of cases. This is so, respondents say, because doctors cannot predict the amount the cervix will dilate before the abortion procedure. It might dilate to a degree that the fetus will be removed largely intact. To complete the abortion, doctors will commit an overt act that kills the partially delivered fetus. Respondents thus posit that any D&E has the potential to violate the Act, and that a physician will not know beforehand whether the abortion will proceed in a prohibited manner.
This reasoning, however, does not take account of the Act’s intent requirements, which preclude liability from attaching to an accidental intact D&E.
This case bans an abortion procedure based on how far the fetus’s body is removed from the woman’s, and the doctor’s intent on how far the fetus would be removed. The ban is not based on fetal development, and I argue it’s not based on humanity or dignity for the fetus. After all, the doctor may legally tear the fetus apart so long as the fetus is mostly in the womb. The Court tries to clarify the incoherent rationale of the case:
The Act’s stated purposes are protecting innocent human life from a brutal and inhumane procedure and protecting the medical community’s ethics and reputation. The government undoubtedly “has an interest in protecting the integrity and ethics of the medical profession.” Washington v. Glucksberg, 521 U. S. 702, 731. Moreover, Casey reaffirmed that the government may use its voice and its regulatory authority to show its profound respect for the life within the woman. See, e.g., 505 U. S., at 873. The Act’s ban on abortions involving partial delivery of a living fetus furthers the Government’s objectives. Congress determined that such abortions are similar to the killing of a newborn infant. This Court has confirmed the validity of drawing boundaries to prevent practices that extinguish life and are close to actions that are condemned.
Do you follow all of that? Innocent human life is protected from the brutal and inhumane procedure of being partially birthed and then killed. The act does nothing about the presumably equally brutal and inhumane procedure of killing in the womb and then extracting. Apparently brutality and inhumanity are increased depending on whether the fetus’s navel is outside the mother’s body. Apparently it’s much more disrespectful to the “life within the woman” to physically remove that life before killing it than it is to kill it and then remove it. Partially removing a fetus and then killing it is “similar to the killing of a newborn infant” but, apparently, killing the same fetus first and then removing it is dissimilar enough to be accepted. The Court continues:
The objection that the Act accomplishes little because the standard D&E is in some respects as brutal, if not more, than intact D&E, is unpersuasive. It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, undermines the public’s perception of the doctor’s appropriate role during delivery, and perverts the birth process.
Ah. Here is the difference. It’s not about brutality, humanity, or dignity. It’s about how one version of brutality affects the public’s perception more than another version. It’s alright to rip a fetus apart, as long as it’s not so visible.
It’s amazing to me how much what people think is moral or should be legal is based on what they can see.