Facial Cruelty vs. Facial Constitutionality

The Supreme Court recently upheld Congress's passage of a ban on "partial birth abortion."

The heart of the opinion is description of the surgical procedure called "dilation and extraction" or ("D & E") by doctors. What the pro-life movement has succeeded in calling "partial birth abortion" is a procedure by which the intact fetus is extracted from the womb and then intentionally killed. The alternate, and still lawful procedure, is to dismember the fetus in the womb and extract the pieces--or to perform a mini-Cesarean.

After the Supreme Court overturned state laws banning the procedure, Congress passed a law prohibiting it. (As the opinion points out, no one has litigated the question of whether Congress even has the power to regulate the practice of medicine). The present opinion (Gonzalez v. Carhart) rejects lower court decisions that upheld a challenge to the federal law. The challengers claimed that the statute was "unconstitutional on its face," in other words, the text of the law itself violates the constitution. For example, a law that required all Texans to attend Baptist churches or pay a fine would be facially unconstitutional; a court would not need to examine how the law was enforced to find it was unconstitutional. In "unconstitutional as applied" cases, the court has to look at actual instances of enforcement to determine whether constitutional rights have been affected.

In this case, the Court concluded that because existing opinions hold that the government has an interest in protecting fetal life stronger later in the pregnancy, and there are still abortion procedures available at this stage of pregnancy, the law was not unconstitutional.

A read of the opinion, however, suggests to me that like the congressmen and senators who adopted it, the justices in the majority were stricken by the cruelty of the procedure.

There was a recent episode of the TV program "House" in which a problem pregnancy results in a very premature delivery. The tiny hand and arm of the baby are depicted. It is, of course, very moving, at least to anyone who has been close to a pregnancy or learned to love babies. So long as the tiny hand is not an abstraction, late-term abortion will have a constituency only among the most zealous advocates of abortion rights.