High Court Approves Infanticide: Dissenting Opinions

Chief Justice William Rehnquist

I did not join the joint opinion in Planned Parenthood of Southeastern Pa. vs. Casey (1992), and continue to believe that case is wrongly decided. Despite my disagreement with the opinion, under the rule laid down in Marks vs. United States (1977), the Casey joint opinion represents the holding of the Court in that case. I believe Justice Kennedy and Justice Thomas have correctly applied Casey’s principles and join their dissenting opinions.

Justice Clarence Thomas

The Casey joint opinion was constructed by its authors out of whole cloth. The standard set forth in the Casey joint opinion has no historical or doctrinal pedigree. The standard is a product of its authors’ own philosophical views about abortion, and it should go without saying that it has no origins in or relationship to the Constitution and is, consequently, as illegitimate as the standard it purported to replace. Even assuming, however, as I will for the remainder of this dissent, that Casey’s fabricated undue-burden standard merits adherence (which it does not), today’s decision is extraordinary. Today, the Court inexplicably holds that the States cannot constitutionally prohibit a method of abortion that millions find hard to distinguish from infanticide and that the Court hesitates even to describe. This holding cannot be reconciled with Casey’s undue-burden standard, as that standard was explained to us by the authors of the joint opinion, and the majority hardly pretends otherwise. In striking down this statute—which expresses a profound and legitimate respect for fetal life and which leaves unimpeded several other safe forms of abortion—the majority opinion gives the lie to the promise of Casey that regulations that do no more than “express profound respect for the life of the unborn” are permitted, if they are not a “substantial obstacle to the woman’s exercise of the right to choose” whether or not to have an abortion. Today’s decision is so obviously with Casey’s explication of what its undue-burden standard requires, let alone the Constitution, that it should be seen for what it is, a reinstitution of the pre-Webster abortion-on-demand era in which the mere invocation of “abortion rights” trumps any contrary societal interest. If this statute is unconstitutional under Casey, then Casey meant nothing at all, and the Court should candidly admit it.

To reach its decision, the majority must take a series of indefensible steps. The majority must first disregard the principles that this Court follows in every context but abortion: We interpret statutes according to their plain meaning and we do not strike down statutes susceptible of a narrowing construction. The majority also must disregard the very constitutional standard it purports to employ, and then displace the considered judgment of the people of Nebraska and 29 other States. The majority’s decision is lamentable, because of the result the majority reaches, the illogical steps the majority takes to reach it, and because it portends a return to an era I had thought we had at last abandoned.

There is no question that the State of Nebraska has a valid interest—one not designed to strike at the right itself—in prohibiting partial birth abortion. Casey itself noted that States may “express profound respect for the life of the unborn.” States may, without a doubt, express this profound respect by prohibiting a procedure that approaches infanticide, and thereby dehumanizes the fetus and trivializes human life. The American Medical Association (AMA) has recognized that Justice Clarence Thomas Joseph this procedure is “ethically different from other destructive abortion techniques because the fetus, normally twenty weeks or longer in gestation, is killed outside the womb. The ‘partial birth’ gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body.” Thirty States have concurred with this view.

Although the description of this procedure set forth above should be sufficient to demonstrate the resemblance between the partial birth abortion procedure and infanticide, the testimony of one nurse who observed a partial birth abortion procedure makes the point even more vividly:

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 (H.R. 1833 Hearing 18, statement of Brenda Pratt Shafer).

The question whether States have a legitimate interest in banning the procedure does not require additional authority. In a civilized society, the answer is too obvious, and the contrary arguments too offensive to merit further discussion.

The majority effectively concedes that Casey provides no support for its broad health exception rule by relying on pre-Casey authority. Indeed, Justice O’Connor, who joins the Court’s opinion, was on the Court for Thornburgh and was in dissent, arguing that, under the undue-burden standard, the statute at issue was constitutional. The majority’s resort to this case proves my point that the holding today assumes that the standard set forth in the Casey joint opinion is no longer governing.

And even if I were to assume that the pre-Casey standards govern, the cases cited by the majority provide no support for the proposition that the partial birth abortion ban must include a health exception because some doctors believe that partial birth abortion is safer. In Thornburgh, Danforth, and Doe, the Court addressed health exceptions for cases in which continued pregnancy would pose a risk to the woman. And in Colautti v. Franklin, the Court explicitly declined to address whether a State can constitutionally require a tradeoff between the woman’s health and that of the fetus. The broad rule articulated by the majority and by Justice O’Connor are unprecedented expansions of this Court’s already expansive pre-Casey jurisprudence.

As if this state of affairs were not bad enough, the majority expands the health exception rule articulated in Casey in one additional and equally pernicious way. Although Roe and Casey mandated a health exception for cases in which abortion is “necessary” for a woman’s health, the majority concludes that a procedure is “necessary” if it has any comparative health benefits. In other words, according to the majority, so long as a doctor can point to support in the profession for his (or the woman’s) preferred procedure, it is “necessary” and the physician is entitled to perform it. But such a health exception requirement eviscerates Casey’s undue burden standard and imposes unfettered abortion-on-demand. The exception entirely swallows the rule. In effect, no regulation of abortion procedures is permitted because there will always be some support for a procedure and there will always be some doctors who conclude that the procedure is preferable. If Nebraska reenacts its partial birth abortion ban with a health exception, the State will not be able to prevent physicians like Dr. Carhart from using partial birth abortion as a routine abortion procedure. This Court has now expressed its own conclusion that there is “highly plausible” support for the view that partial birth abortion is safer, which, in the majority’s view, means that the procedure is therefore necessary. Any doctor who wishes to perform such a procedure under the new statute will be able to do so with impunity. Therefore, Justice O’Connor’s assurance that the constitutional failings of Nebraska’s statute can be easily fixed is illusory. The majority’s insistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the States—a hostility that Casey purported to reject.

We were reassured repeatedly in Casey that not all regulations of abortion are unwarranted and that the States may express profound respect for fetal life. Under Casey, the regulation before us today should easily pass constitutional muster. But the Court’s abortion jurisprudence is a particularly virulent strain of constitutional exegesis. And so today we are told that 30 States are prohibited from banning one rarely used form of abortion that they believe to border on infanticide. It is clear that the Constitution does not compel this result.

Justice Antonin Scalia

I am optimistic enough to believe that, one day, Stenberg vs. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. The method of killing a human child—one cannot even accurately say an entirely unborn human child—proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a “health exception”—which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)—is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, “to establish Justice, insure domestic Tranquility,… and secure the Blessings of Liberty to ourselves and our Posterity,” prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.

As long as we are debating this issue of necessity for a health-of-the-mother exception on the basis of Casey, it is really quite impossible for us dissenters to contend that the majority is wrong on the law—any more than it could be said that one is wrong in law to support or oppose the death penalty, or to support or oppose mandatory minimum sentences. The most that we can honestly say is that we disagree with the majority on their policy-judgment-couched-as-law. And those who believe that a 5-to-4 vote on a policy matter by unelected lawyers should not overcome the judgment of 30 state legislatures have a problem, not with the application of Casey, but with its existence. Casey must be overruled.

I must recall my bemusement, in Casey, at the joint opinion’s expressed belief that Roe v. Wade had “call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” at 867, and that the decision in Casey would ratify that happy truce. It seemed to me, quite to the contrary, that “Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since”; and that, “by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court’s new majority decrees.” Today’s decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism—as well it should. I cannot understand why those who acknowledge that, in the opening words of Justice O’Connor’s concurrence, “[t]he issue of abortion is one of the most contentious and controversial in contemporary American society,” persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people—where the Constitution, by its silence on the subject, left it—and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.

Justice Anthony Kennedy

Ignoring substantial medical and ethical opinion, the Court substitutes its own judgment for the judgment of Nebraska and some 30 other States and sweeps the law away. The Court’s holding stems from misunderstanding the record, misinterpretation of Casey, outright refusal to respect the law of a State, and statutory construction in conflict with settled rules. The decision nullifies a law expressing the will of the people of Nebraska that medical procedures must be governed by moral principles having their foundation in the intrinsic value of human life, including life of the unborn. Through their law the people of Nebraska were forthright in confronting an issue of immense moral consequence. The State chose to forbid a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life, while the State still protected the woman’s autonomous right of choice as reaffirmed in Casey. The Court closes its eyes to these profound concerns.

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