Gonzales v. Carhart

1. Notice that right off the bat Justice Kennedy and the Court employ a mask of the law by describing first trimester abortions being performed "most commonly by the physician vacuuming out the embryonic tissue." (p. 609)

2. But this case is not about first trimester suction abortions, it is about second and third trimester "partial birth" abortions. This requires you to understand the difference between "D & E" abortions and "intact D & E" abortions. The latter is the type of abortion sometimes referred to as "partial birth abortions."

What is the difference between the two methods of surgical abortion"

Here is how the Court describes "D & E" abortions, the "usual abortion method" during the second and third trimester:

After sufficient dilation the...doctor... inserts grasping forceps through the woman's cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart...A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety." (p. 609)

Here is how the Court describes the "intact D & E" or partial birth procedure:

In an intact D & E procedure the doctor extracts the fetus in a way conducive to pulling out its entire body, instead of ripping it apart...Intact D & E usually involves piercing the fetul skull and evacuating its contents, however, because cervical dilation is insufficient to allow the fetus's head to pass once it becomes lodged in the cervix. P. 609 

Again, notice the mask used in describing the procedure. What does it mean to "evacuate the contents" of an unborn child's skull?

Here is a  nurse's more realistic description of the procedure as quoted by the Court in Gonzales:

Here is another description from a nurse who witnessed the same method performed on a 26^1/2-week fetus and who testified before the Senate Judiciary Committee:

“ ‘Dr. Haskell went in with forceps and grabbed the baby's legs and pulled them down into the birth canal. Then he delivered the baby's body and the arms—everything but the head. The doctor kept the head right inside the uterus ....

“ ‘The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.

“ ‘The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp ....

“ ‘He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.’ ”  Gonzales, 550 U.S. at 138-139.

So the issue in Carhart is whether a law permitting the D & E procedure but prohibiting the intact D & E procedure imposes an undue burden on a woman's right to have a second trimester abortion?

To the extent that the law applies to post-viability issues, what is the issue under the doctrine of Roe & Casey?

3. Notice that the majority says that the issue is "whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child."  p. 610 [Another use of a mask]

Notice Justice Ginsburg believes that the law is completely irrational, because it does not save "a single fetus from destruction." (p.616) What is her point? Is there a counter-argument?

The Court says that the law is an attempt by Congress to "use its voice and its regulatory authority to show its profound respect for the life within the woman." (p. 612)  But again, Justice Ginsburg says stuff and nonsense--the Act simply says take the life in the womb by Method X but not by Method Y. How is that showing "profound respect" for life in the womb?

Maybe the real legitimate purpose is not the life of the unborn, but rather regulating the "integrity and ethics of the medical profession" by drawing a clear line between abortion and infanticide? (p. 612)

Is this consistent with Casey?

But if partial birth abortion of Baby Doe is similar to infanticide, why is a D & E abortion of the identical Baby Doe not similar to infanticide?