What a Difference a Judge Makes

Judicial nominations just took front and center for presidential nominees and the 2008 primaries.

The magnitude of who gets to appoint justices to the United States Supreme Court is supremely illustrated by the Court's ruling today upholding the congressional ban on partial birth abortion (PBA). The newest justice, Samuel A. Alito, joined the majority of the Supreme Court in a 5-4 ruling in Gonzales v. Carhart.

Put simply, it's Sam v. Sandra. Justice Sandra Day O'Connor voted with the Court majority in 2000 when it struck down Nebraska's ban on PBA in Stenberg v. Carhart, based on the law's failure to include a health exception and its definition of PBA. Alito took O'Connor's seat on February 1, 2006.

Chief Justice John Roberts also voted with the majority. Roberts' vote, however, duplicated the vote in 2000 by then Chief Justice William H. Rehnquist. Justice Anthony Kennedy's vote, while crucial, was expected to be consistent with his vote to uphold the ban in 2000.

The gruesome and inhumane PBA procedure requires partially removing the baby intact from a woman's uterus until all that remains inside the woman is the baby's head. The abortionist stabs surgical scissors into the back of the baby's skull, inserts a tube to suck out the brains, and then crushes or cuts the skull to complete the abortion.

Congress passed a PBA ban twice while Bill Clinton was president but he vetoed it each time. President George W. Bush signed the ban into law in 2003, as he promised to do if elected.

Kennedy wrote for the majority to reverse a unanimous ruling on July 8, 2005, by the U.S. Court of Appeals for the Eighth Circuit. The Court also reversed the holding in a companion case, Gonzales, Attorney General v. Planned Parenthood Federation of America, Inc., from the United States Court of Appeals for the Ninth Circuit.

Kennedy wrote: “Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman's right to abortion based on its overbreadth or lack of a health exception.”

The Court also held that, “The Act is open to a proper as-applied challenge in a discrete case. … No as-applied challenge need be brought if the prohibition in the Act threatens a woman's life because the Act already contains a life exception.”

Kennedy acknowledged that “both sides have medical support for their positions” on whether a health exception is medically necessary. Nonetheless, the majority held that “legislative options must be especially broad”:

The conclusion that the Act does not impose an undue burden is supported by other considerations. Alternatives are available to the prohibited procedure. As we have noted, the Act does not proscribe D&E [dilation and evacuation]. … In addition the Act's prohibition only applies to the delivery of “a living fetus.” … If the intact D&E procedure 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.

Justice Clarence Thomas agreed with the majority but wrote a separate concurring opinion that was joined by Justice Antonin Scalia. Thomas explained his reason:

I join the Court's opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey. … I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, … has no basis in the Constitution. … I also note that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.

“Today's decision is alarming,” Justice Ruth Bader Ginsburg wrote in her dissenting opinion, which was joined by Justices John Paul Stevens, David Souter and Stephen Breyer. She said the ruling “refuses to take ... seriously” previous Supreme Court decisions on abortion, and that the decision “tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the AmericanCollege of Obstetricians and Gynecologists.”

Today's decision represents a major achievement for pro-lifers, because it stems the tide of pro-abortion rulings.  This progress was made possible only because pro-lifers have recently compelled presidents to appoint conservatives to the Supreme Court.  The hard truth remains, however, that abortion, even late term abortion, is still legal.  Until five members of the Supreme Court agree that the Constitution does not include an unfettered right to lethally inject an unborn child and cut it into pieces with a curette blade (D&E), or turn it into human pulp via vacuum aspiration, abortion will continue.

Jan LaRue is a member of the Culture and Media Institute's Board of Advisors.