April 27, 2007

Living, Life and Death

Viability, that is the defining word that determines the law on abortion. It has becomes unclear and further clouded when viability is extended through complicated medical procedures. We all know that when there is conception, the zygote becomes a living entity. Even the egg and sperm are considered living. After time, they both die if not becoming the zygote. For the Supreme Court purpose in the case Gonzales v.Carhart, the fetus is called the living fetus.

I have questions about being able to make any law regarding abortion, when we have a medical definition about when life ends, but not when life begins. It is agreed when one is born, that life has begun. Living does not mean there is life. We can be kept living by artificial means, when we are declared dead.If that person is known to be a transplant donor, they may be kept living until the organs and skin are harvested. Sometime the body will keep living, when we are clinically dead. Not everyone has agreed to this, but the law has left that to a family member or a designated proxy to decide in that case.

In this decision, Justice Kennedy discusses with preciseness, the details of abortion procedures and later makes judgment on which is the worst or most inhuman procedure.

We next determine whether the Act imposes an undue burden, as a facial matter, because its restrictions on second-trimester abortions are too broad. A review of the statutory text discloses the limits of its reach. The Act prohibits intact D&E; and, notwithstanding respondents’ arguments, it does not prohibit the D&E procedure in which the fetus is removed in parts.

The Act prohibits a doctor from intentionally performing an intact D&E. The dual prohibitions of the Act, both of which are necessary for criminal liability, correspond with the steps generally undertaken during this type of procedure. First, a doctor delivers the fetus until its head lodges in the cervix, which is usually past the anatomical landmark for a breech presentation. See 18 U. S. C. §1531(b)(1)(A) (2000 ed., Supp. IV). Second, the doctor proceeds to pierce the fetal skull with scissors or crush it with forceps. This step satisfies the overt-act requirement because it kills the fetus and is distinct from delivery. See §1531(b)(1)(B). The Act’s intentrequirements, however, limit its reach to those physicians who carry out the intact D&E after intending to undertake both steps at the outset.

The Act excludes most D&Es in which the fetus is removed in pieces, not intact. If the doctor intends to remove the fetus in parts from the outset, the doctor will not have the requisite intent to incur criminal liability. A doctor performing a standard D&E procedure can often “tak[e] about 10–15 ‘passes’ through the uterus to remove the entire fetus.” Planned Parenthood, 320 F. Supp. 2d, at 962. Removing the fetus in this manner does not violate the Act because the doctor will not have delivered the living fetus to one of the anatomical landmarks or committed an additional overt act that kills the fetus after partial delivery. §1531(b)(1) (2000 ed., Supp. IV).

If it is painful an regrettable, would it really make a difference how it happened? wouldn't the regret be in not having the child rather than how their pregnancy was terminated. If a doctor describe both procedures to me, I would be more squeamish about the D&E without meeting the anatomical landmark. He infers that we will get a crazy woman if she does this and I ask, wouldn't she be crazy if she had to deal with an unwanted child? Motherhood is not instinctive in humans or other primates, we learn the behavior. If it was instinctive, every woman would raise and feel the same about their children. What kind of legal argument is this?

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. Casey, supra, at 852–853 (opinion of the Court). While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05–380, pp. 22–24. Severe depression and loss of esteem can follow. See ibid.

In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. See, e.g.,Nat. Abortion Federation, 330 F. Supp. 2d, at 466, n. 22 (“Most of [the plaintiffs’] experts acknowledged that they do not describe to their patients what [the D&E and intact D&E] procedures entail in clear and precise terms”); see also id., at 479.

It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. Casey, supra, at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning”). The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.

It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions. The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand. The State’s interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion.

It is objected that the standard D&E is in some respects as brutal, if not more, than the intact D&E, so that the legislation accomplishes little. What we have already said, however, shows ample justification for the regulation. Partial-birth abortion, as defined by the Act, differs from a standard D&E because the former occurs when the fetus is partially outside the mother to the point of one of the Act’s anatomical landmarks. It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, “undermines the public’s perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world.” Congressional Findings (14)(K), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769. There would be a flaw in this Court’s logic, and an irony in its jurisprudence, were we first to conclude a ban on both D&E and intact D&E was overbroad and then to say it is irrational to ban only intact D&E because that does not proscribe both procedures. In sum, we reject the contention that the congressional purpose of the Act was “to place a substantial obstacle in the path of a woman seeking an abortion.” 505 U. S., at 878 (plurality opinion).

Basically he saying its bad medicine.

As respondents have noted, and the District Courts recognized, some recitations in the Act are factually incorrect. See Nat. Abortion Federation, 330 F. Supp. 2d, at 482, 488–491. Whether or not accurate at the time, some of the important findings have been superseded. Two examples suffice. Congress determined no medical schools provide instruction on the prohibited procedure. Congressional Findings (14)(B), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769. The testimony in the District Courts, however, demonstrated intact D&E is taught at medical schools. Nat. Abortion Federation, supra, at 490; Planned Parenthood, 320 F. Supp. 2d, at 1029. Congress also found there existed a medical consensus that the prohibited procedure is never medically necessary. Congressional Findings (1), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 767. The evidence presented in the District Courts contradicts that conclusion. See, e.g., Carhart, supra, at 1012–1015; Nat. Abortion Federation, supra, at 488–489; Planned Parenthood, supra, at 1025–1026. Uncritical deference to Congress’ factual findings in these cases is inappropriate.
Now for the decision.

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. For these reasons the judgments of the Courts of Appeals for the Eighth and Ninth Circuits are reversed.

It is so ordered.

Read the entire opinion

Have I missed something? The way I see it the law can't be rescinded, because there is no medical consensus that it would ever save the mothers life and that it is OK to do a D&E if there if there is no partial delivery.


Hathor said...

I have no idea why the text changes in the block quotes. I did not want to try and change the font and size, because I might lose the text. This has happened at times.

J.B. said...


The text changes based on the document/webpage from which you copied the text. I ususally find it helpful to write long posts in an text editor such as Crimson Editor, which a friend recommended when I was trying to upload MSWord documents to WordPress with little success and much confusion. Crimson Editor is free and you can downlead from here. For the posts I write for Figleaf, I compose them on Crimson Editor, then upload them to the MovableType platform. I think this way you can make sure the entire post uses the same typeface. I'm not familiar with Blogger, but I don't see why the same technique would not work with it. So much for tech matters.

The way I see it the law can't be rescinded...

You may be right, Hathor, and I hope you are not. I want to ask Ann Bartow of Feminist Law Professors about that and some other questions that I have. Thanks for posting this.


Hathor said...

The text changes when I publish, it looks fine after I paste it either directly from the document or another text editor. I have gone back an edited the html, then something else happens when I publish. Thanks for suggesting another editor, I need something between notepad and Word.

Actually after reading the whole opinion, none of it made much sense. I didn't read the congressional law or that states, so I'm not sure if the state law has to match the Federal law. I get the impression not.

M. Rigmaiden said...

Hathor nothing on the books makes sense regarding abortion policy. Nothing at all. And this is despite the fact that I am avidly pro life. Frankly the whole life versus choice thing is a false dichotomy that prevents us from seeing the true complexity of this issue. Your points are well taken. It would be hard for someone to raise a child they don't want. And it seems that all the women I've ever met that had abortions regret that act. I guess when it comes to pregnancy the situation is always difficult no matter what choices are made.