Our Faith-Based Justices

In Gonzales v. Carhart, the Supreme Court, in a five-to-four decision, upheld the constitutionality of a federal law prohibiting so-called “partial birth abortions” (properly described as “intact dilation and evacuation” or “intact D & E”) despite the absence of an exception to protect the health of the woman. Gonzales reversed an earlier decision, Stenberg v. Carhart, in which the Court had held a virtually identical state law unconstitutional, primarily because it failed to include an exception to protect the health of the woman.

In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation. The majority accepted  those findings even though, as Justice Ginsburg observed in an unusually scathing dissent, those findings were nothing more than political nonsense.

Among Congress’s clearly erroneous “findings” were its assertions that no medical schools provide instruction on intact D & E, that intact D & E is never necessary to safeguard the health of the woman, and that intact D & E is less safe than alternative procedures. Each of these “findings” was and is false. In fact, many laws schools, including Chicago, Northwestern, Yale, Columbia, teach intact D & E; there is a clear medical consensus that in particular circumstances intact D & E is necessary to protect the heath of the woman; and there is a clear medical consensus that in particular circumstances intact D & E is safer than the alternative procedures.

It is not unusual for the Supreme Court to give deference even to implausible legislative findings. But the findings must at least be rational and, when a law restricts a fundamental constitutional right, the findings must be almost unimpeachable. In this instance, every federal court that reviewed these congressional findings rightly described them unreasonable, unbalanced, polemical, and unsupported by the facts.

The five justices in the majority in Gonzales have put at risk the health of women who suffer from heart disease, uterine scarring, bleeding disorders, compromised immune systems, and certain pregnancy-related conditions, such as placenta previa and accreta, as well as those women carrying fetuses with certain abnormalities, such as severe hydocephalus. In all of these circumstances, and many others, the use of the intact D & E is necessary to ensure the health of the woman.

It is important to note that the prohibition of intact D & E has nothing to do with preserving the life of a fetus. The “partial birth abortion” law does not prohibit any abortions. Rather, it prohibits only a particular means of performing abortions. If the woman is willing to undergo a greater than necessary risk to her health, she may terminate her pregnancy by other, less safe, methods. She may, for example, have the fetus terminated by injection prior to extraction, or removed by cesarean, or extracted by non-intact D & E (which involves dismembering the fetus in utero).

What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is “immoral” and may be prohibited even without a clear statutory exception to protect the health of the woman.

By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman “to determine her life’s course” is at stake, it is not for the state -- or for the justices of the Supreme Court -- to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one’s personal religious faith.

In 1972-73, I had the privilege of serving as a law clerk to Justice William Brennan, then the Court’s only Catholic justice. It was in that year the Court decided Roe v. Wade. Justice Brennan struggled in that case, as he struggled in earlier cases involving such issues as school prayers, to separate his personal religious views from his views as a justice. He joined the decision in Roe because he believed in the separation of church and state and because he was convinced that his religious views must be irrelevant to his responsibilities as a justice.

As the Court observed fifteen years ago, “Some of us as individuals find abortion offensive to our most basic principles of morality, but than cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.” It is sad that Justices Roberts, Scalia, Kennedy, Thomas and Alito have chosen not to follow this example.

Comments

[Joan A. Conway]

Didn't we recently discuss how Supreme Court Justices espoused the sentiments of their appointer, the President.

They are very political creatures.

[Patterico]

Erasmussimo,

I have a substantive issue. Stone badly mischaracterized the very holding of the case. Look at Lackawanna Blues's quote above and try to reconcile it with Stone's characterization. It can't be done.

[lav]

It is appalling to observe how ugly personal attacks unworthy of this forum take away from a rational discussion of a legitimate question: Why did the Court uphold the statute despite its lack of a health exception clearly required by the Court’s precedent? Why, instead of following the “substantial medical majority” standard of evaluating the impact of a ban on a particular abortion procedure on a woman’s health, mandated by Stenberg, and in disregard of District Courts’ extensive findings that a “significant medical authority” is of the view that intact D&E is the safest procedure in some circumstances, the Court simply offers that “there is medical uncertainty over whether the procedure is ever necessary” to defend Congressional judgment; why did the Court defer to the Government’s “rational” judgment when a restriction on a fundamental right calls for heightened scrutiny; how could a governmental interest in protecting fetal life and in “drawing a bright line” between “abortion and infanticide” be served by a statute that affects both pre-viable and post-viable fetuses and that permits equally “gruesome” procedure of dismembering the fetus in utero; and why should “moral concerns” about the “inhumanity” of this singled-out procedure override the interest in preventing risks to a woman’s health when, in certain circumstances, other so-called “alternatives” are unavailable (induction of labor), risky and perhaps equally morally objectionable (injection into the fetus that kills it in the womb). This is not an exhaustive list of questions one finds perplexing about the Court’s reasoning. It is not then irrational to assume that the majority is not candid about its true motivations. The dissent certainly offers a sobering observation about the majority’s choice of words in merely “assum[ing]” the precedent to be controlling. We all know what those words may portend.

By the way, since when it is a shame for an academic institution that prides itself in the free exchange of ideas to entertain opinions about which reasonable people may disagree?

[Frederick Hamilton]

A set of questions above say it all: "Here are the real questions. Does society have the right to restrict things that make them squeamish? Maybe.

Do they have the right to restrict things that are in the best medical interest of a patient because it makes them squeamish? The Supreme Court says yes, which should put every person who wants autonomy concerning their personal medical decisions on guard."

Society, Congress, and the states have a duty to protect a viable child, partially delivered alive, only to have its skull crushed in the birth canal and its brain removed. For those of you who can't understand why a vast majority of people understand the reason for a law to protect such infants from such barbarity, you should be condemned to administering Hitler's concentration camps or Pol Pot's killing fields. You would feel right at home.

If our national and state governments won't protect viable partially born infants from such a horrific death, who will? Not Prof Stone and his ilk. Shame on all of you.

What would have been the radical Supreme Court option: to allow the killing of the infants or to strike down the law protecting the infants?

It has nothing to do with Catholic, Jew, Protestant, or any religion. That is a sick way to look at it.

There is a point where the life of an unborn child takes precedent over the wishes of the mother. Almost being born alive and then being killed is way past that point. That so called humane people can't understand that says it all.

[Patterico]

"why did the Court defer to the Government’s “rational” judgment when a restriction on a fundamental right calls for heightened scrutiny"

Time for you to re-read Casey, my friend.

"By the way, since when it is a shame for an academic institution that prides itself in the free exchange of ideas to entertain opinions about which reasonable people may disagree?"

Never.

The shame lies in a professor mischaracterizing the holding of the opinion.

Since when is that okay just because you agree with the professor's politics?

[Dana]

Did the five justices in the majority vote as they did because they are Catholic? I’m not a mind-reader, so I have no way to know. But Professor Stone apparently is telepathic, to know that the five justices in the majority, all Catholics, imposed their religious views rather than expressed their legal ones; the notion that their religious views could be conterminous with their legal ones without their faith directing their legal opinions seems not to have occurred to Professor Stone — or he’d rather simply have a separation of church and state argument, regardless of what the facts might be.

[Lackawanna Blues]

lav:

You need to get some perspective. I'd be all for Stone expressing his idiotic and anti-Catholic views if I thought for one instant that the same type of idiotic views would be tolerated if they discussed Jews, Muslims, or homosexuals.

Fact is, the only type of assinine remark made by a faculty member on this blog is of the anti-Catholic variety. Go figure.

[Erasmussimo]

Some good comments here. Several issues:

One side continues to commit two intellectual sins that I will chide them for: waving a bloody shirt, and misusing terminology. The constant references to the mechanics of the procedure reveal an emotional approach to the problem that, in my opinion, discredits those who use it. If you're right, you don't need to appeal to the emotions.

The terminological error arises from using terms that assume the result they desire. They refer to a fetus as either an infant or a baby. This terminology is incorrect; the correct term is fetus. Relying upon incorrect terminology is the very antithesis of sound legal reasoning. Tut, tut!

Next, on the question of whether Mr. Stone mischaracterized the majority opinion, I agree that his representation is misleading. The court did in fact reject the findings of Congress on the matter, yet Mr. Stone claims an acceptance of those findings as critical to the majority's decision. I don't read it that way.

I think it fair to criticize Mr. Stone's observation about the religion of the majority. While it is a striking coincidence, I don't think it worthy of note in this discussion. However, Mr. lav rightly points out that there's definitely something rotten in the majority opinion. There are striking inconsistencies and logical somersaults. I agree that the majority opinion makes no sense when read carefully. It is also clear to me that the justices are not being forthright about the real reasons for their decision, because I refuse to believe that the logical peregrinations of the majority opinion reflect the true thinking of such brilliant people.

And surely the nasty comments made about Dr. Stone redound more to their writers' discredit than to the professor's.

[Chicago Alum]

Stone says that the five justices voted they way they did because they are Catholic.

I guess Stone wrote what he did because he is a Jew.

How is my comment any more "nasty" than the Stone's baseless slurs against five justices of the Supreme Court?

[Erasmussimo]

"How is my comment any more "nasty" than the Stone's baseless slurs against five justices of the Supreme Court?"

It isn't. They're both baseless slurs. Are you proud of yourself?

[lav]

"If our national and state governments won't protect viable partially born infants from such a horrific death, who will? ... What would have been the radical Supreme Court option: to allow the killing of the infants or to strike down the law protecting the infants?" The Act applies both to pre-viability and post-viability pregnancies. As far as the former is concerned, even this Court hasn't overruled Casey's holding that a woman has a right "to have an abortion before viability and to obtain it without undue interference from the State." Hence, we have a problem. As to the latter, your position is basically that the state's interest to protect a viable fetus from "a horrific death" always trumps the interest in preserving the woman's health. Until the Court's decision a few days ago, that wasn't the law. Should the woman be required to carry a post-viability pregnancy to term no matter how grave a risk the pregnancy and other methods of terminating it present? Even if an in utero injection results in damage to the uterus or an infection makes her unable to have children again? I may well understand your objection to the “barbarity” of the intact D&E procedure, but then, under Congress’s logic (or lack thereof), why is it more barbaric when it is applied to a partially delivered fetus than when a fetus is dismembered inside the womb, a procedure which the ban doesn’t reach? The fallacy of your and the Court’s reasoning is that the objectionability of an abortion procedure on moral grounds is sufficient to outweigh the woman’s interest in preserving her health. Any abortion procedure by its nature may be morally objectionable to some, yet it cannot serve as grounds for a blanket prohibition on a right to determine one’s life's course.

Regarding the standard of review:

“The full scope of the liberty guaranteed by the Due Process Clause … recognizes … that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Casey, 505 U.S. at 849

“[A] burdensome regulation may be validated by a sufficiently compelling state interest…. "Compelling" is of course the key word; where a decision as fundamental as that whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.” Carey v. Population Services International, 431 U.S. at 686.

[Lackawanna Blues]

Well, Eras, then answer Chicago Alum's unstated question -- do you condemn Geof Stone for posting a "baseless slur" against Alito, Roberts, Thomas, Scalia, and Kennedy or not?

[FrankMCook]

Risking entanglement in an exchange that has gone beyond the limits of civility, I'd like to throw out a suggestion that morality is not arbitrary - and no, I'm not going to suggest that it is not because it is based on revealed wisdom. I think, and I should credit the late Doctor Sagan's writings here, that morality is a collection of ideas that have survived a battle of the fittest. Notions of morality that promoted the survival of the cultures that held them, survived along with those cultures. Notions of morality that proved counter-productive died out with the cultures that practiced them.

I recognize that it is easy to turn that into a pro-life argument as on the face of things abortion would appear to be anti-survival, but I'm really not interested in being drawn into speculation over whether a culture that mandates the birth of unwanted children is more likely to survive than one that does not. For me the fundamental American value of self-determination carries the day. As I said in an earlier message, I get nervous when well meaning citizens feel morally compelled to enact their own beliefs into law. I want the power to make difficult decisions for myself. I hope others would grant me that power and that I would grant it to them. Isn't do unto others the fundamental moral truth shared by every human culture on the planet today?

[Erasmussimo]

Mr. Cook, I very much hope that you will remain, as we desperately need some cogent, civilized discussion. There is an analog of Gresham's Law in blog discussions: uncivil people drive out civil people. However, it is possible to delay Gresham's Law if we simply ignore the uncivil people.

I agree strongly with your observation. Morality isn't an accident, and it didn't simply spring into existence when the Bible or the Koran was written. All societies have moral codes and yes, those codes are essentially codifications of pragmatism in behavior. There's a lovely story about Mongol values. It was forbidden to wash clothes in stormy weather. Why? Well, the Mongols were sky worshippers, and thunderstorms were extremely frightening to them. Experience had shown that anybody washing clothes -- at the edge of a body of water, obviously -- who heard a thunderclap tended to panic, fall or jump into the water, and drown. Therefore, washing clothes in stormy weather has highly immoral in that society. Makes perfect sense -- for that society. Wouldn't make much sense now. Although I suppose that the majority in the recent Supreme Court decision would, if translated into the Mongol context, rule Constitutional any law expressing this moral dictum. ;-)

The problem, of course, is that social contexts change and what makes great sense in one social context can be pretty stupid in another. The semitic ban on eating pork stems from the problems of controlling trichinosis in that meat -- not a problem in a society equipped with refrigerators and good ovens. In the same fashion, the failure to address the legal status of a fetus in the Constitution arose from the fact that, back then, all fetuses were always dead, therefore the issue was moot.

In the same fashion, our culture emphasizes the importance of saving each and every baby. That value exists for reasons that were very sound a few hundred years ago. Infant mortality was very high and so every baby was precious -- you never knew if this one would be the one who survived. However, in some other societies, babies were not so highly valued. It turns out that infanticide is not some deviant behavior; scientists have documented infanticide in all sorts of simian species in which the mother is better off trying again later. And we have documented lots of similar behavior in human societies from all over the globe.

So yes, morality really does have an objective basis. The supreme irony of all this is that objective basis boils down to -- wait for it -- Darwinian factors! Survival of the fittest (fitness includes morality) and passing down one's genes.

Ain't that a kick in the pants? ;-)

[Thomas]

Stone says " The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman “to determine her life’s course” is at stake, it is not for the state -- or for the justices of the Supreme Court -- to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one’s personal religious faith." But this is another example of Stone's incompetence. Recall that Roe, as extreme as it is, says "For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." A woman's interest in "determining her life's course" wasn't, under Roe, suffficient to bar any regulation of abortion. Stone apparently is having a hard time recognizing that his moral views aren't actually the law.

[Lackawanna Blues]

Funny that Eras thinks he can dodge issues with charges of incivility following a post like Stone's -- which is the most uncivil thing available at this link.

In any event, Eras, your note -- which essentially makes morality a deterministic after-the-fact conclusion (i.e. whatever morality we have today is a product of evolutionary forces that pick the most fit morality) -- ignores the possibility that morality and survival are unconnected. It ignores the possibility that human beings are not inclined to do right, but inclined to do wrong, and that those willing to use and abuse power might survive and propagate if they eliminate the weak and the powerless (such as unborn children or the elderly).

You have singularly failed to address the fundemental point -- why should 5 justices decide the Nation's abortion laws rather than the People and their elected Representatives? You don't have an answer, other than "because I like what 5 justices have done so far." That's not a principle, it's just ends-justifying modern liberalism.

[R.C.]

One particularly sad assertion here is that it's unusual for Justice X to be influenced by his "religion," and that this somehow represents a change from the normal manner of jurisprudence (whether negative or positive).

It is actually no change, because no clear-thinking person with any amount of thought-out and consistent principles has ever based his decisions on anything other than his "religion," whether he called it by that name or not.

"Religion" is a difficult thing to define. Reductionism suggests that we examine its component parts to see which are common to all "religions" and thereby define the term. But how may we define the term broadly enough to encompass all that is popularly called "religion" (Christianity, Buddhism, Shinto, Islam, Hinduism, Taoism, Wicca, et cetera) without including much that is usually not?

Perhaps we should be suspicious of the apparent religiosity in much that is not called religion. The average unreflective agnostic may show no signs of religion but neither do the most lukewarm Presbyterians, while some of the most passionate, public, and fervent evangelists of the atheist creed regularly demonstrate sincere missionary zeal.

And Stone's own zeal against the majority opinion is here similarly suspect. Apparently the dogmas of some are offensive to Stone because they contradict the dogmas of Stone.

Returning to reductionism, religion seems to be made up, regularly, of at least four out of five of the following items:

1. Cosmological assertions which are generally determined by starting philosophical assumptions (prominently materialism and theism)
2. Assertions about that which is supernatural (including existence or non-existence)
3. Guidelines describing right and wrong conduct, and their consequences (temporal or eternal)
4. Assertions about the nature of man, and his relationship to nature (and, if present, the supernatural)
5. Guidelines and habits intended to transmit information about the previous four items to others, including future generations (these may over time become cultural hallmarks, or be updated to better meet their intended goal if circumstances change)

If these are the things which make up religion, then it is hard to find a person who lacks it, or at least, it is hard to find a thoughtful person who lacks them. A person may not have an "organized" religion, and not give a fig for philosophical premises, but he cannot help but have his thinking shaped by them, and when his four-year-old son asks, he will generally influence the next generation with an answer based on that which influences him.

He will certainly rub an important decision up against his principles of right and wrong, even if those principles were not taught him by the same organization which taught him the assumptions underlying his cosmology. And these will be influenced by what he thinks about the nature of man, even if it was derived from still a third source.

(He could even independently derive his own opinions in all three areas, perhaps...but such a person would be miraculously rare. In all likelihood, the person who thinks he has developed his own approach to life has actually gathered bits from here and there without knowing about it. And his sources are usually more monolithic than he realizes: He may look back to find that in developing his philosophy, he unconsciously aped a favorite professor, or a fashionable author, or more popular peer.)

Ultimately, to avoid functionally having a religion, a man must lack any kind of habits for transmitting his opinions about items 1-4 to others, and must have gathered those opinions from no unified source, and must ensure that those opinions about 1-4 form no unified philosophical whole within himself, but remain independent, mostly undecided, and ideally mutually contradictory.

Failing that, a man can hardly help having something which serves as his religion, whether he likes it or not. And that is to his credit. I don't suppose anyone would have much use for the monosyllabic bore who never functioned as if he knew anything about his world or his place in it, had any opinions about what was good or bad, or took any steps to say so. Such a person certainly would have no business on the bench.

How irrational, then, to ask a judge not to be informed by his understanding of the world, of men, of right and wrong and their consequences, when making judgments!

But of course, that is not what Stone is after. He is not concerned about people who share HIS OWN views of the world, of men, of right and wrong. He only wants to preemptively disqualify the opinions of anyone who has different views of the world, of men, and of right and wrong.

It is a very convenient strategem. Stone places his own assumptions in what he regards to be a protected class (non-religious) and his opponents' assumptions about the world are assigned to a more restricted classification (religious). In the marketplace of ideas, it's easy to get a monopoly in one's own market niche when the competition can be defined as belonging to a different niche. And when that niche can be outlawed altogether, so much the better.

But the fearsome Catholic justices are merely bringing their whole intellects to bear when making decisions, as is Stone in his dissenting opinion. And these whole intellects are necessarily influenced by philosophical and ethical assumptions.

The thought that their assumptions, and his, are in fact the same category of assumptions has not entered Stone's mind, and he must not let it enter.

If he does, he'll be forced to give up the convenient tactic of disqualifying their conclusions through mere labels. He'd have to wrestle with them on the basis of the law, instead. We can't have that: It's too much work.

Personally, I sincerely hope that the Nine Justices are ruling under the compulsion of all their respective religions, including the Justices who aren't aware they have one. The alternative would be impossible: An attempt to make a principled decision in the absence of any principles.

That Stone wishes some dogmas (but not his own) eliminated ahead of time demonstrates only that he's lazy enough not to want to argue about them, is willing to protect freedom of conscience only when his own conscience is untroubled by the results, and that he's too busy being an advocate for specific policies to think overmuch about the phrase "no religious test."

[Mordechai]

Fire this profesor. His statement is clearly as racist and bigoted as anything Imus said.
Catholic bashing is wrong and has no place in a University setting.

The law banning partial birth abortion was passed by the US congress, most of whom are not congress. The American people, most of whom are not Catholic elected this congress.
All polls show most Americans oppose this barbaric practice.

[FrankMCook]

While I think my ancestors were amazing people, after all their recorded oral history remains a best seller today, I'm unable to accept that their dietary rules reflected an understanding of microbiology given that as recently as our Civil War our Doctors had not yet learned the medicinal value of washing their hands. Did you know that the rule against mixing meat and milk was accompanied by a rule against mixing cotton and wool? I think these rules were sociolgical rather than medical. They are easier understood in terms of a need to keep nomadic culture separate from agriculture culture.

I suppose I should note while I'm writing of medical concerns, that those who would continue to cast the abortion issue in medical terms haven't read Roe. The court expressly rejected the argument that the legal question should turn on the medical question of whether the fetus was "living." This issue is not about medicine. It is about the power of the state to take a difficult decision out of the hands of those directly concerned.

Which brings me back to the recent decision. I'm okay with it. Slippery slope arguments just don't bother me. That's something the NRA taught me. Gun control and the second amendments are issues for another day, but I long ago decided if I believed that the NRA is wrong in thinking that considerations of allowing the camel's nose under the tent required opposing even assault weapons bans, and I do, then consistency required me to accept reasonable regulation of abortion.

Somewhere in the first week of law school, we started to understand that most interesting legal questions boiled down to where do you draw the line between two sets of results. Drawing the line way over at either extreme to protect the other extreme just isn't the way things need to be done. Sometimes we just need to step a little over the edge and dig in our heels to keep from sliding.

As for the assertion a few messages earlier that issues such as this should be decided not by judges but by majority vote, I strongly dissent. As I tell my business law students, the Bill of Rights should be understood as a list of situations where we have agreed that majority vote doesn't count. We have agreed that society is better off if we don't let the majority decide what newspapers can print, or when dissidents should be jailed, or what religion we should follow. I'd add "or what size our families should be" to that list as the Court has done.

That does not in any way suggest that I think abortion is an easy decision or a good decision. I would caution those who think that it is a decision to be made one way or the other by majority will to consider China's decision to mandate family size to control its population. China's decision may be a rational response to a very real social problem, but it sure doesn't seem like an appropriate exercise of government power to most Americans.

[Gabi]

"Society, Congress, and the states have a duty to protect a viable child, partially delivered alive, only to have its skull crushed in the birth canal and its brain removed. For those of you who can't understand why a vast majority of people understand the reason for a law to protect such infants from such barbarity, you should be condemned to administering Hitler's concentration camps or Pol Pot's killing fields. You would feel right at home.
If our national and state governments won't protect viable partially born infants from such a horrific death, who will? Not Prof Stone and his ilk. Shame on all of you.
What would have been the radical Supreme Court option: to allow the killing of the infants or to strike down the law protecting the infants?
It has nothing to do with Catholic, Jew, Protestant, or any religion. That is a sick way to look at it.
There is a point where the life of an unborn child takes precedent over the wishes of the mother. Almost being born alive and then being killed is way past that point. That so called humane people can't understand that says it all."

WOW. The misinformation is so think here, I don't know where to begin.

First of all, you're supplementing the problem with the argument as it stands. Right now the argument that Kennedy and the comments here make is this: "this procedure is gross, so we shouldn't do it. Ever." This, despite popular opinion, is not a valid argument.

I would first argue that based SOLELY on that argument, there are a myriad of methods of killing that are so gross we shouldn't use them. Bombs and bullets come to mind. I mean do you know what happens when a bullet enters the body? It rips apart someone's organs! It blows out their brains! And a bomb! I mean those things are vicious! People are permanently maimed from thos things! Their limbs are blown off in showers of blood!

HOWEVER, I realize that are very good reasons to use vicious weapons in warfare, in self defense, etc. THIS is why: "It's gross, let's never do it" is a bad argument.

SIMILARLY, a procedure that saves the life of a woman whose pregnancy has gone horribly awry must also deal with it by the tools and procedures that are available to her. Unfortunately if the pregnancy has advanced to a certain point there are certain procedures that must be used. And yes, they are gruesome, but that doesn't make them less necessary.

To cite the most necessary example, there is a disease called hydrocephalus. About 5000 fetuses develop this disease in the U.S. Of the more severe forms, the fetal head is sometimes as large as 20 inches in diameter because of the excess of fluid. The fetus upon birth would not be able to gain consciousness and would not survive. To attempt to give birth to a fetus with a 20 diameter head would kill them both. So a D&X procedure where the fluid is drained and the skull collapsed is the most necessary procedure. And now, that procedure is no longer available.

As for the misinformation, these abortions are often occurring on fetuses that are not yet viable enough to live on their own, or will never be viable enough to live on their own, like the example above. Just because a doctor induces a body to dilate and for the fetus to emerge, does not mean that these fetuses are viable.

The reason that I personally would have wanted this law struck down is the lack of a health exception for the mother. This lack of exception means that if a woman's blood pressure begins shooting up, her kidneys begin shutting down, and massive organ failure results, the doctor can only step in to stop her from dying. So organ failure isn't enough, a coma isn't enough, a permanent vegetative state isn't enough. The brink of death is the only thing that this law allows.

There is no reason that this law had to exist without a health exception. NO reason. And the failure to understand that is absurd.

[dobeln]

The US Pro-choice side's repeated invocation of "precedent" is ironic. It takes more than a little chutzpah to pose as the defender of precedent after having invented so many new "constitutional rights" from whole cloth in order to short-circuit the democratic process.

As for the actual issue, here in Europe, we have legislated reasonable limitations on abortion using bog-standard democratic procedures not involving newly-discovered constituational rights. Mundane, but effective.

"Partial-birth"/"D&E", etc. is not legal here in Sweden, at least, there are trimester limitations that grow more stern as the pregnancy proceeds, and so on. This has led to a reasonable national consensus on abortion that has largely made it a non-issue. Democracy - you might want to try it out.

PS.
It's hard to keep a straight face when people argue against "legislating morality" , and so on. Legislation as a concept is all about imposing your morality on others.
DS.

[dobeln]

" I'd add "or what size our families should be" to that list as the Court has done."

Perhaps the court should not go around adding amendments arbitrarily to the constitution?

There is, after all, a democratic amendment procedure for that - knowingly using judicial power for routing around democracy equals gross usurpation of power, and should be grounds for impeachment and hard prison time in any reasonably democratic society. Sadly, the US appears to have been unable to keep the judiciary in check in that respect.

[Erasmussimo]

Wow. What an amazing salad of ideas I read here, some brilliant, others feculent. I note with sadness the proclivity of the pro-lifers to engage in wild hyperbole -- although some of the commentary from that side is certainly useful.

R.C.'s comment is particularly thoughtful, but I think I perceive a flaw in the reasoning. He starts out by broadening his definition of religion to include all philosophy. OK, that's fine, and it's certainly correct to observe that a judge's decisions cannot but reflect their philosophy. But after generalizing religion to the broadest degree possible, and demonstrating that this broad level of thinking is unavoidable, he then applies the unavoidability to the narrow definition of religion. In other words, he argues that, since we must require judges to bring their philosophies to the bench, we must permit them to impose the smallest particulars of their religious beliefs upon their decisions. This is a mistake. While we definitely need judges to bring their personal philosophies to their work, we must also insist that they remove the particulars of their religious beliefs from their decision-making. They must draw a bright line between the broad elements of their philosophy and the particular conclusions it draws. A judge's personal beliefs about abortion itself should never play any role in that judge's decision-making. We expect the judge to apply philosophy at the broadest level to interpret the law, not decide moral issues.

Mr. Cook, I agree entirely that the slippery slope argument is a poor argument to use against this decision. There are plenty of perfectly good arguments against it. I object to the lack of a provision for the health of the mother, and to the reliance on the ickiness factor rather then the well-being of either mother or fetus. My preference is for a Constitutional amendment fixing the transition from fetus to human at some defined point. If our republic were still dedicated to democratic principles, we'd hammer out a compromise that left both extremes sputtering with rage, tell them to shut up and live with it, and be done with those whole issue.

Mr. Dobeln, I admire the European approach to abortion and think it much superior to the American approach. I think we Americans get really hung up when we start arguing fundamental rights. We lose the perspective to compromise.

[Lackawanna Blues]

If you admire the "European approach" -- i.e. leaving abortion policy to elected officials and now judges -- then how can you possibly support Roe and Casey?

You are not making any sense, Eras.

I admire the "European approach" too. I just want to be able to vote for officials who can actually make abortion policy -- and ban abortion if that's what the People want. You don't want anything like the "European approach" Eras, because abortion would be illegal in probably 15 States if we got rid of Roe.

Stop pretending you are in favor of leaving abortion policy to the politcal branches. You aren't.

[FrankMCook]

Call me old fashioned but I don't think we can say the Courts have decided whether an exception for the health of the mother is Constitutionally required until a case presents itself that actually raises that issue. How would I personally decide? If I were a legislator, I think I'd vote for the exception. I'm not sure, however, that were I a Judge, I'd read one in. I am sure that were I a prosecutor I'd exercise my discretion and not prosecute a Doctor who violated the law to preserve the mother's health.