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What the Partial-Birth Abortion Ban Act Does NOT Prohibit

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In Gonzales v. Carhart, the Supreme Court upheld what’s called “The Partial Birth Abortion Ban Act.” But the reason the Court upheld the Act is because it prohibits only one very specific method of killing babies. What’s terrifying and gruesome is what it doesn’t prohibit.

According to the decision, babies may no longer be killed by delivering them intact until only the head appears, or until their lower bodies appear up to the navel, and then puncturing their skulls with scissors and sucking their brains out. You say to yourself, “That’s good!”

But here’s what the Gonzales decision leaves as legal options for abortions right up to nine months:

1) Reaching into the woman’s womb with forceps and crushing the baby’s skull, and then delivering the baby stillborn,

2) Injecting the baby with lethal amounts of potassium chloride or digoxin, which induces a massive heart attack, killing the baby, and then delivering the baby stillborn,

3) Reaching into the woman’s womb with forceps and other instruments and ripping the baby back and forth through the woman’s cervix until the baby is dismembered and killed, and then vacuuming out all of the remains,

4) Delivering the baby up to some point short of the “anatomical landmarks” laid out in this decision, and then puncturing her skull and sucking her brains out, and

5) Essentially any method possible to kill the baby as long as the baby is not delivered intact up to the “anatomical landmarks,” namely, the head or the navel.

One must give Justice Ginsburg credit for pointing out in her dissent that the ban on partial birth abortions “saves not a single fetus from destruction, for it targets only a method of performing abortion” (italics hers). She says, “In short, the Court upholds a law that, while doing nothing to ‘preserv[e]…fetal life,’ bars a woman from choosing intact D & E although her doctor ‘reasonably believes [that procedure] will best protect [her].'” Of course, Justice Ginsburg would legalize any and all methods of killing babies, allowing doctors to choose the methods they deem to be safest to the woman, because to Ginsburg, the unborn, at all stages of pregnancy, are all the same: unworthy of protection.



Written by Michael Duenes

July 31, 2012 at 10:46 am

The Language Says It All

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In my 2011 post entitled, Babies Legally Ripped Apart Limb from Limb, I described the abortion procedure that remains legal, even after a ban on “partial birth” abortions was upheld in the Supreme Court case of Gonzales v. Carhart. In the Gonzales, Justice Kennedy describes this still-legal procedure. I reproduce it again here.

Of the remaining abortions that take place each year, most occur in the second trimester. The surgical procedure referred to as “dilation and evacuation” or “D&E” is the usual abortion method in this trimester…Although individual techniques for performing D&E differ, the general steps are the same.

A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus… A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs, such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix, the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix for two days, while others use dilators for a day or less.

After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, 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. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed.

Some doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus’ body will soften, and its removal will be easier.

As gruesome as this is, I think it’s important to consider the language people use in describing such things. Language is something that God has given only to humans, and it is not surprising to find the Scriptures having a lot to say about our words, and how they may be used for good or wickedness.

In Gonzales v. Carhart, Justice Kennedy first refers to baby in womb as an “unborn child,” a startling admission. But it’s not really an admission because when he begins discussing abortion, he refers to the “child” as “the embryonic tissue.” Then when discussing the grizzly procedure described above, you can see that he starts talking about “fetal parts” and the “fetal body.” Kennedy talks about “the life of the fetus that may become a child” and about the fetus as “a living organism while within the womb.” Then he descends into a full-fledged euphemism by describing the child’s death as “fetal demise” and a dead baby as “an expired fetus.” One doctor is quoted as trying to “draw the tissue out” when talking about drawing out a live baby all except for the baby’s head. One doctor said the surgeon “evacuates the skull contents” when he was really talking about puncturing the unborn baby’s skull with scissors and sucking his brains out. Justice Ruth Bader Ginsburg can barely stomach calling a baby’s brains being sucked out “partial birth abortion.” She prefers that we stick with “dilation and extraction” or “intact dilation and extraction” because that’s what “the medical community” likes to call it. Oh.

These are not some nit-picky observations I’m making here. It shows a particular attempt to enshroud, distort, and disguise what’s really going on by a twisted use of language. It is deceit and moral trickery, and it is evil.


Written by Michael Duenes

July 29, 2012 at 8:29 am

Reasoned Judgment

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Before leaving Casey behind, I’d like to simply reproduce and make a few comments on some of Justice Scalia’s ideas in his dissenting opinion. Justice Scalia properly lays waste the majority opinion’s claim to be using “reasoned judgment.” He writes:

“‘Reasoned judgment’ does not begin by begging the question, as Roe and subsequent cases unquestionably did by assuming that what the State is protecting is the mere ‘potentiality of human life.’ The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life (emphasis his). Thus, whatever answer Roe came up with after conducting its ‘balancing’ is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human.”

Justice Scalia shows, at some level, that he understands the vital question when it comes to abortion: What is the unborn? The Court in Roe never answered the question, but obviously treated the the unborn as though they aren’t entitled to life if the mother decides they aren’t. One would think that if the answer were uncertain, wisdom would dictate erring on the side of caution.

Scalia stumbles, however, in his next sentence, where he says that, whether the unborn is “a human life” or merely potential life “is in fact a value judgment.” On the contrary, it’s never been a “value judgment,” and Scalia’s assertion is even more egregious today, when modern embryology, genetics, and ultrasound have shown that the unborn are human beings from conception, with everything contained within them necessary to mature into adult human beings. Further, the unborn are full human beings, created in the image of God, headed for an eternal destiny, And this is not a “value judgment” simply because it comes from the Bible. It is moral and spiritual knowledge, which all of us have, but which we suppress in our blindness and rebellion against Christ. I gather that Justice Scalia would not say that the statement, “It’s wrong to torture babies by stabbing them in the eyes with forks” is a “value judgment.” But if he thinks it’s wrong to torture babies, how does he know this? Science, by itself, surely cannot make this judgment. So Scalia is correct legally, but wrong morally and spiritually, when he says that “[t]he States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.” This is the same as saying, “The States may, if they wish, permit infanticide…”

Justice Scalia is “distressed…about the ‘political pressure’ directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions.” But why? He’s distressed by it because he believes that the Court is not to “fiddle with” the text of the Constitution and “our tradition” when making rulings. Well enough, but the Court is also not supposed to ignore “the laws of nature and of nature’s God” when making rulings, and Scalia’s belief that the States can ignore God’s laws is a great failing.

Scalia is at his finest, however, when laying bare the arrogance of the members of the Court who wrote and agreed with the opinion in Casey. The majority said that they could not overrule Roe because “to overrule under fire…would subvert the Court’s legitimacy.” The Court said that even those who disagreed with Roe should submit themselves to the Court and follow it, and that “to all those who will be…tested by following, the Court implicitly undertakes to remain steadfast.” Finally, the Court cast itself as a tribunal “invested with the authority to decide [the American people’s] constitutional cases and speak before all others for their constitutional ideals.” To this, Scalia replied:

     The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life-tenured judges—leading a Volk who will be “tested by following,” and whose very “belief in themselves” is mystically bound up in their “understanding” of a Court that “speak[s] before all others for their constitutional ideals”—with the somewhat more modest role envisioned for these lawyers by the Founders. “The judiciary … has … no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment….” The Federalist No. 78, pp. 393–394 (G. Wills ed. 1982). Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on controversial matters, no shadow of change or hint of alteration (“There is a limit to the amount of error that can plausibly be imputed to prior Courts,”), with the more democratic views of a more humble man: “[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, … the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101–10, p. 139 (1989).
     It is particularly difficult, in the circumstances of the present decision, to sit still for the Court’s lengthy lecture upon the virtues of “constancy,” of “remain[ing] steadfast,” of adhering to “principle.” Among the five Justices who purportedly adhere to Roe, at most three agree upon the principle that constitutes adherence (the joint opinion’s “undue burden” standard)—and that principle is inconsistent with Roe. To make matters worse, two of the three, in order thus to remain steadfast, had to abandon previously stated positions. It is beyond me how the Court expects these accommodations to be accepted “as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make.” The only principle the Court “adheres” to, it seems to me, is the principle that the Court must be seen as standing by Roe. That is not a principle of law (which is what I thought the Court was talking about), but a principle of Realpolitik—and a wrong one at that.
     [T]he notion that the Court must adhere to a decision for as long as the decision faces “great opposition” and the Court is “under fire” acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be “tested by following” must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change—to show how little they intimidate us.
Scalia is almost Churchillian in his denunciation of the Court and its pretensions. And at this hour in our nation’s history, one could wish for more of it from other quarters. From whence shall it come? I’m not sure. Of course, these are not the only words, and Scalia’s is not the only tone, that must be conveyed as we engage the issue of abortion. Many soft and comforting words must be spoken as well, for we are dealing with human pain and death, and with forgiveness and redemption. But I am grateful to see such moments of clarity, such force of words to blow away the fog of moral timidity and pride. I would hope to help more young people see the issue with such clarity, whatever else I may do.

Written by Michael Duenes

July 26, 2012 at 4:24 pm

You’re Only Free If No One Tries to Influence You

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Or at least that seems to be the thinking of Justice Stevens in Casey. Stevens writes that, while the State of Pennsylvania “is free…to produce and disseminate material [designed to provide a woman with information about the general status of her unborn child], the Commonwealth may not inject such information into the woman’s deliberations just as she is weighing such an important choice.” Yet this assumes that a person’s choice is more “free” if no one tries to influence that person one way or the other. This is an odd and anachronistic notion of freedom, and it further betrays the kind of radical, individualistic autonomy in which our Nation is drowning. The idea seems to be: Don’t distract me with truth, I want to be free; free to sleep with whomever I want, whenever I want, in whatever manner I want, and I also want to be free from the emotional, psychological, social, and spiritual consequences of my “freedom.” I answer to no one but myself. “The way of a fool is right in his own eyes, but a wise person listens to advice” (Prov. 12:15).

For Justice Stevens, it follows that if a state requires a woman to, say, view an ultrasound of her baby before aborting her, the state has somehow rendered the woman “less capable of deciding matters of gravity.” But this would by like telling a doctor, “Now, don’t inform this woman of the risks and realities of open heart surgery because she is ‘capable of deciding matters of gravity’ on her own.” It also assumes, as Justice Stevens argues, that “no person undertakes such a decision (to have an abortion) lightly.” Really? No one?

What happens to our thinking when we have to justify the taking of human life? We cut ourselves off from each other, and so we’re left, not only making the decision to abort while radically alone, but also being left terrifyingly alone after we’ve gone through with it. This is what our individualism teaches. One of the great untold sadnesses of our abortion culture (and it is untold, lest we come to believe that abortion is more than the “choice” we make it out to be) is the emotional and psychological pain in which so many of our wives, girlfriends, and daughters must live. We tell them that they are absolutely free in their choice, but it turns out that many of them don’t feel so free afterwards. And how will we restore true freedom to them? Lord, have mercy on us.

So Justice Stevens would allow states to attempt to influence women against abortion, just as long as the effect of such attempts is, well, not to influence them against abortion, for that would impinge their freedom. As Justice Scalia says, such a policy would allow “the State to pursue [its interest in potential human life] only so long as it is not too successful.”


Written by Michael Duenes

July 24, 2012 at 6:42 pm

“Privacy” Isn’t in the Constitution Either

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Justice Stevens took pains to note that the Fourteenth Amendment doesn’t recognize unborn babies as “persons.” He quoted Roe’s holding “that the fetus is not a ‘person’ within the language of the Fourteenth Amendment.” And I thought I’d point out that, since Justice Stevens says we ought to pay serious attention to the “language” of the Constitution, we should note that the word “privacy” occurs nowhere within its language.

Justice Stevens says that the State’s interest in protecting babies “is not grounded in the Constitution.” Funny that, neither is a right to privacy. Interestingly enough, neither is “substantive due process,” to which Justice Stevens pays homage in this case. I think I’ve shown quite clearly that the Court’s definition and understanding of “liberty” has nothing whatsoever to do with the Constitution, for, try as I might, I can’t find anything in the Constitution’s language remotely close to the idea that, “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” I just keep looking for that Constitutional codicile that protects my right to “define my own concept of the universe,” but shucks!

Yet Justice Stevens thinks the Court’s statement about “liberty” is “grounded in the Constitution.” I see.

I also can’t seem to find concepts in the Constitution like “decisional autonomy” and “potential life.” So my best guess is that certain Supreme Court justices believe that the Constitution has, as the Griswold decision puts it, “penumbras, formed by emanations from [the Bill of Rights’] guarantees that help give them life and substance” when such penumbras are convenient to them. When we want to define unborn babies out of existence, we’ve got a penumbra for that. It helps our consciences. But when the penumbras, as it were, get in the way, such as one that would categorize the unborn as “persons” under the Fourteenth Amendment, then the justices want to stick strictly to the language of the Constitution.

Justice Scalia points out the emptiness of this kind of “reasoned judgment” when he writes that “after more than 19 years of effort by some of the brightest (and most determined) legal minds in the country, after more than 10 cases upholding abortion rights in this Court, and after dozens upon dozens of amicus briefs submitted in these and other cases, the best the Court can do to explain how it is that the word ‘liberty’ must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice.”