Gonzales v. Carhart: Did anyone actually read it?

American Life League president Judie Brown issued the following statement concerning the Supreme Court’s decision in Gonzales v. Carhart:

The ten-year debate over a particularly gruesome form of infanticide has certainly raised public awareness about the procedure’s ghastly nature. Thank God such practices will no longer be allowed-unless a doctor can show that he inadvertently delivered a living fetus, 90 percent of the way, because he claims he had to do so to save a woman’s life.   

The pundits are now telling us that abortion will be a key issue in the 2008 political campaigns. Pro-life groups have showered us with glowing news statements celebrating a major victory. Pro-abortion groups are doing their best Chicken Little impressions, insisting that the “women’s rights” sky is irreversibly falling. I’m left to ask one simple question: Have any of these spokesmen-or any of the innumerable media talking heads-actually bothered to read what the justices said?  

Justice Kennedy’s majority opinion states that “a fetus is a living organism within the womb, whether or not it is viable outside the womb.”  Kennedy then writes that “an abortion not involving such partial delivery is permitted.” In other words, tearing the baby’s body limb from limb inside the womb-which is called a standard D&E abortion-is acceptable; delivering 90 percent of the baby before killing him is not acceptable. Kennedy goes on to state that 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.”  

There is no doubt that the five justices who concurred in the opinion agree that partial-birth infanticide is cruel and inhumane. What is not clear is whether this decision is really a step toward re-criminalizing surgical abortion.   For example, the decision explains, “If intact D&E is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure.” Additionally, the justices tell opponents of the law that if they believe the act should have contained a health of the mother exception, they must bring those arguments before the court in an appropriate case, which thus far they have not done. 

To my mind, this decision is fraught with deliberately crafted language that not only accommodates Roe v. Wade and its progeny but does little to suggest that the justices are even concerned about setting forth adequate protections for a single preborn baby whose body is not 90% outside the womb. Why aren’t there other pro-life leaders who wonder aloud the same question that I pose here: Where is the victory?

Release issued: 23 Apr 07