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VOL. 9, NO. 1Jan. 5, 2007
"Partial-Birth Abortion": Will the Supremes Abort This Moral Madness in 2007?
By Virginia Armstrong, Ph.D., National Chairman

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As we peer at the 2007 agenda of the U. S. Supreme Court, no anticipated decision outweighs (or even equals) in cultural and constitutional significance the Court's upcoming ruling on the constitutionality of the partial-birth abortion ban passed by the U. S. Congress in 2003. This law has been thrown out by several judges across the nation, and pro-lifers hope that now the Court will finally reverse its pro-abortion course by upholding the federal PBA ban. Observers at the November Court hearing on the federal PBA ban said that the newest justice, Samuel Alito (a hoped for pro-life vote), asked no questions; and strongly pro-life Justice Clarence Thomas was absent due to sickness. Thomas's absence does not disqualify him from a vote in the decision. The decision may not be announced until June.

In 1994, Mother Teresa met with then-President Bill Clinton and declared to him, "The greatest destroyer of peace today is abortion, because it is a war against the child, a direct killing of the innocent child, murder by the mother herself. And if we accept that a mother can kill even her own child, how can we tell other people not to kill one another?" Mother Teresa's truism applies with even more force to "partial-birth abortion" — an act described by the U. S. Congress as "gruesome and inhumane."

The federal PBA is quite specific in defining the murder it proscribes. "Partial-birth abortion" occurs when the abortionist "deliberately and intentionally vaginally delivers a living fetus" and either the entire head of the baby or any part of the baby's body past the navel is outside the mother's body. The abortionist then kills the baby, usually by puncturing the back of the child's skull and ripping out the baby's brains. Pro-life forces make two types of compelling arguments against PBA: arguments of law and arguments of fact. All arguments either distinguish this case from the Nebraska state PBA ban thrown out by the Court in Stenberg v. Carhart (2003) or require that the Court now invalidate portions of Stenberg conflicting with the following truths. These truths are compelling:

  • Arguments of Fact. Many of the facts concerning partial-birth abortion were compiled by Congress after extensive hearings during four Congresses — the 104th, 105th, 107th, and 108th. These hearings resulted in Congressional passage of PBA bans three times — in the 104th, 105th, and 106th Congresses.

    • "Partial-birth abortion" is not really "abortion" at all. It is infanticide — the killing of a baby. The baby has substantially exited the mother's body when killed, and "the vast majority of babies killed during partial-birth abortions are alive until the end of the procedure." There is a distinction between terminating a pregnancy and terminating a child being born. The latter is infanticide.

    • The federal PBA bans a procedure known as "D & X" or "intact D & E." This is not, as abortionists have tried to argue, the same thing as "standard D & E" or "nonintact D & E" abortions which are protected by the Court's rewriting of constitutional provisions to protect abortions. Even if current abortion techniques are "constitutionally protected," (and we vehemently deny that they are), the new PBA ban does not cover such acts and is not rendered unconstitutional by current "law" protecting "standard abortions."

    • Partial-birth abortion is never medically necessary to preserve the health of the mother. In reality PBA "poses serious risks to the long-term health of women and in some circumstances, their lives." These risks include an increased risk of cervical incompetence, future barrenness, uterine rupture, hemorrhaging, etc. Pro-PBA advocates have produced no clear and consistent evidence that maternal health is promoted by PBA.

    • The federal PBA ban involves a process covering three days from beginning to end, thus rendering it impossible to utilize the deadly procedure in a "medical emergency." The absence in the PBA ban of an "emergency" exception is therefore irrelevant and in no way negates the law.

    • PBA is "gruesome and inhumane," "a procedure subject to the most severe moral condemnation, condemnation reserved for the most repulsive conduct," and an act "offensive to the most basic principles of morality."

  • Arguments of Law. Neither the Constitution nor current pro-abortion [unconstitutional] court decisions apply to the federal PBA and invalidate it.

    • Roe v. Wade protected only the dismemberment of an unborn child totally inside the mother's body. Indeed, in Roe, the Court specifically avoided constitutionalizing the destruction of a child "during parturition" (i.e., the act of being born). Untouched by Roe was Article 1195 of the Texas Penal Code, which assessed a penalty of up to life imprisonment for the destruction of "a child in a state of being born and before actual birth." Thus, neither Roe nor any of its judicial progeny invalidates, or even applies to, the federal PBA ban.

    • The PBA does not create an "undue burden" on a woman's "right to an abortion" (a test the Court has utilized since it popped out of the fertile imagination of Justice Sandra O'Connor in the 1980s). Abortion regulations are "undue burdens" only if they "endanger maternal health." The PBA protects, rather than endangers, maternal health.

    • Even if judges had the power to define which human beings shall live and which should die, current law can be seen as passing the buck on determining constitutionality from judges to doctors — or even one doctor. Doctors could decide whether current legal standards justifying abortions exist and to slay children when they — the doctors — make their own determination that legal standards are met. This is moral madness and constitutional chaos.

    • The overwhelming body of factual findings justifying a PBA ban has convinced at least 27 state legislatures as well as Congress to pass PBA bans. Congress included in the federal PBA ban a lengthy citation of its findings justifying the ban. Federal courts, including the Supremes, should give — and have given — great respect to Congressional findings. The Supremes have recognized this vital truth in numerous past decisions: "[w]e owe Congress's findings [on factual issues] deference in part because the institution 'is far better equipped than the judiciary to' 'amass and evaluate the vast amounts of data' ' bearing upon legislative questions'" and because "[the courts] owe respect [to Congress] for its authority to exercise the legislative power."

    • Professionals [here, medical professionals] may not be unanimous regarding a particular issue [i.e., PBA] in order for courts to act. Indeed, the Court has declared that "legislative options must be especially broad . . . in areas fraught with medical and scientific uncertainties . . . ." "Uncertainty among experts is a reason for legislative latitude, not legislative paralysis."

    • The test that the Court should follow in determining the constitutionality of the federal PBA ban is the one followed in cases between Roe and Stenbergthe reasonableness test. This requires no more than that there be a reasonable connection between an abortion regulation and maternal health. The PBA ban meets not only this test, but the much tougher "compelling state interest" standard, as demonstrated by the totality of evidence presented here.

    • Contrary to pro-abortion advocates, the federal PBA ban passes the "overbreadth standard." This test applied in abortion law requires that "standard abortions" not be touched by the federal PBA ban. This is the case as discussed above.

    • Also contrary to pro-abortion advocates, the federal PBA ban is not "void for vagueness." Also as discussed above, the law is very specific in describing the conduct that it prohibits and is devoid of unclear terms or phrases.

The mentality of pro-abortionists was clearly revealed in the astonishing testimony given by Dr. Robert Crist in the 1983 case of Planned Parenthood v. Ashcroft. Crist declared that "the abortion patient has a right not only to be rid of the growth, called a fetus in her body, but also has a right to a dead fetus." May we pray that 2007 will be a watershed year in abortion jurisprudence, a year when the Court agrees with Congress that permitting such a "brutal and inhumane procedure" as PBA will "further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life." "And God said, Let us make man in our image, after our likeness; . . . . So God created man in his own image, in the image of God created he him; male and female created he them." Therefore, God "hates hands that shed innocent blood . . . . yea, [this is] an abomination unto him . . . ."

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