More on SCOTUS and Abortion

As Pamela noted below, the Supremes handed down a victory today to the anti-abortion wackos, ruling 5-4 in Gonzalez v. Carhart (2007) that the federal law banning “partial birth abortions” is constitutional.

I just wanted to add one other variable, a religious one, to the glaring fact that the five justices in the majority are all men: and that is they are all Catholic men.

It pains me, as a Catholic, to have to bring this up, but as anyone who knows Catholicism and its stance on abortion will tell you, one can’t be a member in good standing with the church (as the five justices are) and support (or vote for) anything the church deems “anti-life”. And in the case of the so-called “partial birth” procedure, the Church has been emphatic on its marching orders to its members.

It also pains me, as someone who is trained to read the Constitution and Supreme Court opinions for a living, to have to bring up such a subjective angle as the obviousness of the five justice’s religious preference. But I also understand that all sorts of things effect the way one reads the Constitution, including religious (or lack thereof) beliefs, and to pretend their Catholicism played no role in a legal decision about a topic the Church is very clear about is to deny the obvious, in my opinion. I don’t wish to start any anti-Catholic or anti-religious tirades or threads, but it must be a factor to consider when discussing this decision.

And as Justice Ginsburg writes, what makes this decision so troubling is that it literally turned because of a change in the membership of the court. Justice Sandra Day O’Connor’s replacement, the intellecutally dull Samuel Alito, provided the fifth vote to overturn a precedent the court had set a mere seven years ago (Stenberg v. Carhart (2000), which struck down a Nebraska partial-birth abortion ban almost exactly like the federal one upheld today).

This is why presidential elections are so important, and why one small leap to the left on the court and today’s abysmal decision is history.

Edited and Cross posted from AoF

Bookmark and Share

Bookmark the permalink.

67 Responses to More on SCOTUS and Abortion

  1. Ginny Cotts says:


    Oh yes. It started with a Cardinal back east in ’04 who insisted that Kerry and anyone who supported him should not receive the sacrament unless they confessed, did absolution and changed their ways.

    Here in Colorado, the regional Bishop declared the same thing – with plenty of support from the Colorado Springs Focus on the Family crowd. He pushed it last year during the ’06 race too.

    That’s the sort of thing that adds to the suspicion of the group on SCOTUS.

  2. Darrell Prows says:

    If it’s real, it’s real, and I thought that it was real.

    Anyway, I’m just finsihing up quite a sizeable piece taking a little different look at Carhart, and I’m going to drop it here very shortly.

    My best quess is that the Catholic contingent is either going to love it or hate it.

  3. Deacon John M. Bresnahan says:

    Comment in moderation

  4. Darrell Prows says:

    At first, abortion was illegal. This is strange because the law is often about balancing competing rights, but the only “rights” being considered were those of the unborn. Women, for reasons that completely escape me, were totally left out of the equation. And then came Roe v. Wade.

    Rightly or wrongly, opening up a world of choice for women was not as easy as seems like should have been the case. A framework to allow balancing of interests needed to be created first, and it was only after that was done that the Court was able to move on to deciding the case. Absent balancing, the only possible outcomes were no abortion, and no abortion prohibition.

    Stage one of Roe was to invoke the newly blossoming “Right to Privacy”. I think that it’s fair to say that our society had become complex enough that we had either to promulgate such a principle in a concrete way or to evolve into a country very much different than that which the great majority of Americans had considered us to be since day one. With no cognizable and enforceable individual privacy right we would give general society the authority to control personal behavior in ways that amount to nothing more than imposing morals and preferences. Citing the single example of the once observed policy of prohibiting interracial marriage should be sufficient to emphasize the point. (This was ended only in 1967.)

    Having “given” women a stake in decision making regarding their own pregnancies, the Court then proceeded to the balancing process. The fact that balancing was adopted as the preferred course of action resulted from the acknowledgment that the end result of the pregnancy process is a person. The fact that the Court was not willing to say that that person exists at the instant that an embryo is created is due to the fact that science had no way to make that be true absent the help of the woman involved, and forcing women to carry unwanted embryos to term nine months later is nothing that any government could require while upholding even the pretext of being part of a free country.

    The balance inevitably and appropriately broke down along lines that were created by the capabilities of medical science. For the final three months of a nine month pregnancy, women don’t really have to carry fetuses that they don’t want to raise as children, they just have to give them away. Doctors know how to pull that off pretty easily, and the imposition on the woman at that point is considered to be fairly minor, what with viability being established and all. Any other rule would look a lot like giving legitimacy to “I don’t like kids, I just like being pregnant”. (Assuming that that particular flavor of mental illness exists.)

    For the first three months into a pregnancy them little items are as sensitive as sensitive can get. You could remove them as gently as gently could be and they’re still toast. And they ain’t paying rent so eviction is an option that no one has the right to second guess.

    Except that Gonzalez v. Carhart seems to say some things about where we’re headed with respect to the second trimester, and there’s every possibility of that spilling down in to the first. How this whole thing looks like it’s going to play out has a little note of irony to it because it seems like the best possible outcome may actually result from the two camps in the abortion debate deciding to pull together to bring medical science to the point where abortion as we know it no longer happens. On the other hand, the alternative could get pretty weird, too.

    If you read Roe you get the distinct impression that those Supremes would not have been at all adverse to drawing the lines in different places if the medical testimony had been different. And one thing that is abundantly clear now is that medical science has come a long way since then. I think that anyone who believes that the Court is not going to be impacted by the fact of how little gestation is now required for us to be able to turn fetuses into outside of the womb babies is just kidding them selves. I believe that Blackmun would have been tempted to move the “third trimester” line down towards 20 weeks if they were writing on a clean slate today, and I think that that reality is not going to be ignored by the current justices. In fact, I think what just happened means that it hasn’t been ignored, even if the influence is only being mildly hinted at. The adversaries seem to still be circling each other at this stage, but that won’t last.

    Anyway, I’ve prepared this groundwork so that I can make the prediction that the S. Ct. will allow the abolition of abortion if and when it can be pointed out that it can do so without forcing women to continue unwanted pregnancies. Making it possible to remove fertilized eggs from one woman and nurture the embryo in the body of another almost seems like child’s play compared to some of the stuff that we are already doing. But, hey, why not get real equal opportunity about this and create the technology for fertilized eggs to grow inside of the body of men. You don’t want “your child” aborted, here you go, you do the pregnancy.

    And for the last resort, when we run out of receptive women and willing men to take these transplants, do we opt to force them into the bodies of prison inmates, or do we go the test tube baby route? Because this is where the end of abortion is at. Anyone who believes that women can be forced to give birth to babies that they don’t really want (a web site with “do it yourself” abortions, anyone?), short of turning this country into a prison camp, is just kidding themselves.

    And as for those on the way out right wing who would love nothing better than to see the United States of America turned into the United States Federal Prison, I can only say “in your dreams you thoroughly twisted reject from decent humanity”.

  5. Ginny Cotts says:


    I’m glad you found a group on Kos that is more to your liking than we are. We have often referred to members as the Kos Klowns because for far too long they could not have that kind of discussion. There is still some of it that goes on. Our standards here have ususally generated very intelligent conversations and even some good exchanges with conservatives who found us far more willing to exchange in constructive debate than any other liberal site.

    Two things. Tell me or show me anyone who is PRO ABORTION. This is the kind of inflammatory language/labeling that causes people to identify you as more of a lemming than a thinking human. The clarification that the pro choice movement has tried to use is that we support Reproductive Rights.

    If you think that this is not a threat, start listening to the people who are thinking that individuals should have to pass psychological and intellectual testing to be allowed to have children. Not going to happen here? Ok, be just as sure as you want to. I would point out that there are some scientific studies that show psychological problems statistically higher among evangelicals.

    The blog is owned and run by Pamela Leavey. The writers are allowed to do their own thing with minimal editing. Generally, we have been invited and allowed to write here because our work has been within Pamela’s guidelines. There is a difference between shock radio/writing and ideas that present concepts uncomfortable to think about. The latter we welcome.

    Todd has been a terrific contributer and makes good points in his columns. We don’t have to agree completely with what he writes or whether the conclusions are obvious. I think he has made it clear he was questioning the situation with three upfront comments:

    It is subjective.
    He is Catholic.
    He is paid and “trained to read the Constitution and Supreme Court opinions”.

    I absolutely refuse to discount subjective aspects to human existence. A great deal more of our existence and life choices are based on subjective rather than objective reasons. The coincidence of the five catholics on the bench changing this ruling is very upsetting to me. As a Unitarian, I am constantly faced with having my personal freedoms and religious practices interfered with by Trinitarians in this country. I am assumed to be immoral and hateful – except by the people who know me but don’t know my religious beliefs. If you think Todd’s comments are bigoted, come live in my world for a week.

    The amount and nature of responses to the use of ‘wackos’ (which Todd agreed was unnecessary) and ‘marching orders’, which has been pretty well supported as an appropriate application, is quite out of proportion and not at all on topic. Meanwhile you persist in using the inflammatory ‘bigot’ label despite the number of times Pamela has asked and cautioned you to cease.

    End of requests. Your comment is in the mod que until she gets back.

  6. Ginny Cotts says:


    Great review and good points. It does come down to reproductive rights as far as I am concerned. I disagree with the idea that the court could end abortion because the woman could undergo a procedure that would remove the embryo from her womb. It is a medical procedure with consequences and risks that she would have to agree to. Regardless of the risks that abortions also involve, it is the individuals right to choose the risks they are willing to bear based on the procedure and it’s outcome.

    As an RN I have to throw some caution on the whole idea that medical science has significantly advanced the capacity of bringing premature infants to independent, normal functioning. There are entirely too many of these kids who are very low functioning and/or total care, special needs than many of us – who are aware of what their parents go through- think is appropriate. Many of those parents have similar conclusions.

    I don’t have time to research the statistics, my memory of the incidence and reasons for this type of pregnancy termination is that they have sound medical basis.

    What really keeps irritating me on the whole subject is that the trinitarians who are so sure they are right to impose their beliefs on the rest of us, also tend to be the ones who interfere with educating our young people on sexuality (not just biology). Instead of recognizing that we are very sexual creatures and that eventually, when we are in a committed relationship, this is a very important aspect to our health and well being; it is still considered very ugly, wrong, etc. No need to help these kids understand that Madison Ave and Hollywood promote a lot of garbage on the subject and that more could be done to learn how to control the feelings and desires.

    Just because some Trinitarians think that all conception control is immoral, I do not understand why they cannot accept that many others do not agree and that under our separation of church and state rights, they should not seek to impose their religious beliefs on the whole country.

    If you don’t believe in abortions, don’t have one. If you don’t believe in contraceptives, don’t use them. But don’t place the ‘life’ of a bunch of cells over the reproductive rights of the woman who has to give those cells any chance to become a human.

    I was always very determined that any child of my reproductive system would be brought up by ME (and their father) and ONLY US. I did not want the child subjected to the kind of religious indoctrination I knew too many people in this country practice. I achieved this – despite conceiving both our children immediately after we stopped using contraceptives- by using more than one contraceptive, religiously, the rest of the time.

    We all have moral values that can be practiced by not interfering with those of others. Exercising reproductive rights by controlling conception or implantation is simply not the same as killing or murdering a living human being. Even killing is condoned in some circumstances such as self defense, justice and war.

    Women should have the right to prevent or terminate a pregnancy they are not prepared for, cannot cope with or will jeopardize their health, well being or even the well being of their existing children.

    And yes, I have a real problem with 5 men being able to make this call for all the women in this country. I find it totalIy unsurprising that the two female justices have upheld the reproductive rights of women. And I have many problems with how the last two men made it to the bench.

  7. Ginny, I Released it from the mod que before I read the previous comments. Sorry!

    Deacon, First of all, it is The Democratic Daily! Not the Democrat Daily! I will no longer take your comments out the mod que, because you are without a doubt, a right wing hack. Your continued spew about “liberals” like it is a horror, and your reference to the Klan, tells me a whole lot. My other comment was what we call sarcasm, but this one deals with what you have said.

    You don’t want dialog, so why should anyone waste the time? Period! Your reference to “The Democratic Daily” as “The DEMOCRAT Daily” shows that you are a typical wingnut. BTW, how many liberal Klan members have you ever heard of? Let me remind you of how you started this:

    “(except in the minds of bigots and ignorant Catholics)”

    Not a way to start a dialog! Feel free to go back to DKos and see how far you get with your so-called dialog there.

  8. Ginny Cotts says:

    No problems Donnie. Very easy to take it out again 🙂 Good points.

    For the record, the Deacon did not actually use ‘bigot’ in that particular comment. As Donnie points out, the other comments were just as out of bounds, such as the Klan reference.

    Also, Democrats are very aware of the right wing changing the name of our party from Democratic to Democrat. Not your perogative folks. We see the derogatory implications quite well. Maybe Pamela will put that in the guidelines and start editing any comment which mislabels the party – or the blog.

  9. Ginny Cotts says:

    Something I ran across last night that speaks to the RCC disconnect from the Bible and how long it takes for the PTB to rectify their errors. This one has alway torqued my soul.

    End of Limbo

  10. Darrell Prows says:

    Ginny, you’re coming at it from a slightly different perspective than I am. Basically, you’re looking at the issue from fairly traditional (and I might say, impeccable) logic.

    I think I’m going a little more real world. You ask who these five guys are to do this, and the answer is the only five people who matter. There are some things in our system that are left exclusively in the province of the Supreme Court and, whenever any five of those people agree, that is no longer an opinion, it is a fact of life. You and I have opinions, they issue commandments, and I for one would fear if we ever tried to do things differently.

    I am trying to shed light on where we came from so I can try to shed light on where we may be going. The reality is that rights do get balanced and it’s typical for each of us to like some of the results, and dislike others. In this instance I guess that what I am really saying is that if and when we reach the point that a million unwanted embryos can be converted to a million gestations that end acceptably, there can be a certain number of women who are injured or killed in the process and smart money would bet that the Supreme Court will put its stamp of approval on the new process. I obviously don’t know where the sacrifices will be ordered to come from, but it is a safe prediction that we will witness this process unfold during our lives.

    In fact, I think we just caught a glimpse.

  11. J Fox says:

    The vast majority of these partial birth abortions are NOT for extreme cases as I keep hearing and seeing repeated over and over. They involve healthy babies and healthy women, according to Ron Fitzsimmons of the National Coalition of Abortion Providers. The American Medical Association, a pro choice organization, has also said that Partial Birth abortions are never the ONLY procedure available at that stage of pregnancy.

    This particular bill also provides an exception for life threatening health conditions.

  12. Darrell, a great post above regarding the history of modern abortion, but one point to add: abortion was actually legal and safe in this country from our founding until the late 1800’s/early 1900’s, when the AMA and other medical associations began to push for criminalization in order to combat the first wave of women suffragists. When the anti-choice people complain about being labeled misogynists who want to control women, they neglect the fact that the whole reason abortion was criminalized in the first place was to specifically to control “uppity women”.

    Funny that J. Fox above knocks the AMA today as being “pro-choice” when its the groups largely responsible for having created this debate to begin with.

  13. Ginny Cotts says:

    J Fox,

    This article in Slate does a good job of discussing the controversy and Fitzimmons role: Abortion Apostate:The media get suckered by Ron Fitzsimmons–again.

    The procedure that is at the center of this controversy is the IDX, or D&X. Abortions that are done after 20 weeks accounted for 1.4% of the total in 2002 according to Centers for Disease Control and Prevention statistics.

    D&X procedures are used in approximately 15% of late-term abortion cases. This is about 2,500 and 3,000 per year (data from the Alan Guttmacher Institute for the year 2000). They are typically performed between the twentieth and twenty-fourth week of gestation. The viability of a fetus before 25 weeks is extremely low.

    The AMA is also aware that physicians have been sued for NOT referring patients for the procedure. The other options are a D&E, cesarean section, or early induction of labor, all of which involve dangers to the mother’s life.

    Here are some of the reasons women chose IDX over other procedures:

    The woman does not have to experience labor.
    The woman does not have to undergo abdominal surgery.
    The procedure results in a largely intact body over which the parents may grieve.
    Sharp instruments are inserted into the uterus fewer times than in a D&E abortion.
    The fetus may have hydrocephalus, where the head may expand to a radius of up to 250% of a normal skull at birth, making it impossible for it to pass through the cervix. If live birth is desired, the physician may drain the excess fluid in utero using a syringe, or a caesarian section with a larger than usual incision can be used. If abortion is desired, D&X may be the simplest procedure.

    Here are some of the reasons identified for having a late abortion:

    A deteriorating financial situation
    A change in relationship with the father
    A lack of awareness of the pregnancy until its later stages
    Discovery of the pregnancy by others who persuade an abortion, for example, the parents of a minor
    Inability to have an abortion earlier in the pregnancy (possibly due to a lack of funds, lack of transportation, or a legal restriction)
    Discovery of a fetal abnormality, undetectable earlier in the pregnancy
    The pregnancy becomes a risk to the mother’s life or health.

    Most of these problems are related to inadequate knowledge, access to health care or counseling. As I have stated before, the issue needs to include such things as how well we educate young people on responsible sexuality expression and conception control.

    If we didn’t have the stigmas and restrictions attached to all of those things, late abortions would be largely due to health issues.

    And again, just because you think that infant is a human doesn’t mean the mother or some of us think that it is protected under the concept of right to life over the mother’s reproductive rights.

    “Abortion stops a beating heart” As do:

    The death penalty

    Deaths from no health care due to no health insurance or inadequate health insurance.

    Drunk driving, road rage and a lot other vehicular manslaughter.

    Suicide and homicide from inadequate mental health care.

    Killing in self defense.


    My point is there are MANY other more problematic causes of unnecessary or illegal deaths that we could be dealing with rather than this. When the other numbers are cut down or eliminated, and the alternatives of education, contraception, morning after pills, RU and other options are more fully offered, we can see what numbers we are actually dealing with.

    And I doubt that whatever the number, it will still come back to reproductive rights.

  14. Ginny Cotts says:


    The question was not who the five guys are. The point was they are all guys, not to mention Catholics. And as Todd points out, it was those guys in the AMA a century plus ago that made abortion illegal to get control of ‘uppity women’.

    (One of my bumper stickers : Well Behaved Women Rarely make History)

    As far as turning a million embryos into a million live infants becoming a reality in our lifetime. I think the ecological problems we will face – very influenced by population- will have some sway here. I also see this time as some of the last throes of the fundametalists (Christian, Muslim and Jewish), who had better be thrown out of the major forces of the respective countries or we will have an Apocolypse.

    I also don’t see how you balance the rights of a biological entity that is not yet recognized a citizen of any state – except those conceived in Israel – against those of an adult woman.

  15. Darrell Prows says:

    Ginny, I once did some volunteer counseling at Planned Parenthood, but that was in the early Seventies. Reading you, it is clear that this whole field of medicine has come a long way since then. Thanks.

    PS: My hidden agenda is leading up to discussions of the whole subject of “Right to Privacy”, the threat to it, and where I see “The Culture War” inevitably leading.

  16. Ginny Cotts says:


    There isn’t a field of medicine that hasn’t come a few light years from the 70’s. I used to be very committed to maintaining competency in a variety of areas and unwilling to limit myself to a confined age group or diagnosis. About 7 or 8 years ago I had an experience of attending a short (2 hr) lecture on Hepatitis C by a very good GI doc. 18 months later I was blown away to find out several significant points or statistics he had stressed were obsolete. Now I know I can’t keep up with anything except what I actually do. If I have a need to know, there’s the Internet.

    Love your agenda. Don’t hide it!

  17. Well, you’ve been getting the major “Catholic defense” attacks because your blog was featured on a blog by one of Bush’s “Catholic” advisors.

    My complete response to his column is at this LINK.

    Catholic Bashing

    As the author of the “chill wind blows from Rome” comment, I’ve addressed the implication that my blog (and yours) was “anti-Catholic.” It wasn’t. Good posting.