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Justice Kennedy's Dissent Sheds Light on Carhart

Dateline 7/2/00

The dissent penned by Justice Anthony Kennedy in Stenberg v. Carhart, the ruling on Nebraska's partial-birth abortion law, sheds some interesting light on the case. Kennedy brings up points that haven't gotten much of an airing before the public.

Legitimate state interests

Kennedy begins by reminding us that there is more at stake here than LeRoy Carhart's abortion practice. He says:

    The State’s constitutional authority is a vital means for citizens to address these grave and serious issues [surrounding abortion], as they must if we are to progress in knowledge and understanding and in the attainment of some degree of consensus.

    The Court’s decision today, in my submission, repudiates this understanding by invalidating a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right.

Justice Anthony Kennedy's dissent surprised many and rankled abortion advocates. See:
An Abortion Conversion for Justice Kennedy?

Eroding respect for life?

Kennedy goes on to address the procedure Nebraska attempted to ban, which he stresses, "the Court is correct to describe as 'clinically cold or callous.'" He continues:

Background on LeRoy Carhart
What kind of doctor is this, that his claims carry such weight?

Nebraska Viability Law
Why did Carhart challenge the D&X ban when he already operates in violation of this law?

Kennedy then moves on to telling us a little about Carhart himself. Carhart "has no specialty certifications in a field related to childbirth or abortion and lacks admitting privileges at any hospital." Carhart also "performs abortions throughout pregnancy, including when he is unsure whether the fetus is viable." Kennedy notes that Carhart, unlike the physicians providing expert testimony in the case, performs partial birth abortions in addition to the D&E abortions the media focused upon in their coverage of the case. The expert physicians, Kennedy also noted, are "board certified instructors at leading medical education institutions and members of the American Board of Obstetricians and Gynecologists." Kennedy implies, rather than states, what should be obvious: that Carhart is not the quintessential conscientious physician looking after his patients; Carhart is the quintessential assembly-line abortionist. Carhart's fretting over the law's impact on his practice is laughable, given his fairly loose interpretation of existing abortion laws.

I'll let Kennedy describe the D&E himself, as its impression was made on him by Carhart (line cites removed for readability):

Kennedy moves on to D&X (cites removed for readability):
BPA Diagrams
Illustrating what Kennedy describes.

Kennedy reiterates that Nebraska only sought to ban D&X, not D&E, and comments, "In light of the description of the D&X procedure, it should go without saying that Nebraska’s ban on partial-birth abortion furthers purposes States are entitled to pursue. Dr. Carhart nevertheless maintains the State has no legitimate interest in forbidding the D&X. As he interprets the controlling cases in this Court, the only two interests the State may advance through regulation of abortion are in the health of the woman who is considering the procedure and in the life of the fetus she carries." Kennedy, however, begs to differ.

"Strict scrutiny" vs "undue burden"

Kennedy noted that Casey abolished the "strict scrutiny" standard the Court had given abortion cases. He quotes the opinion given in Casey: “The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted.” And, he notes, in Casey, the Court "held it was inappropriate for the Judicial Branch to provide an exhaustive list of state interests implicated by abortion." Kennedy notes:

Planned Parenthood v Casey
Read it here.

Kennedy cites the opinion of O'Connor, himself, and Souter in Casey:

The state's interest in abortion's impact on society

Kennedy also notes that states "also have an interest in forbidding medical procedures which, in the State’s reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus. Abortion, Casey held, has consequences beyond the woman and her fetus." Abortion is not simply a matter between, as the slogan says, "a woman and her doctor." Kennedy reminds us of the Court's recognition that abortion is, “fraught with consequences for … the persons who perform and assist in the procedure [and for] society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life.”

The State, Kennedy notes, "may take measures to ensure the medical profession and its members are viewed as healers, sustained by a compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life which cannot survive without the assistance of others."

D&X - pushing the envelope

In Carhart, Kennedy points out, the majority noted that D&E, like D&X, is still gruesome and dehumanizing. (A firm grasp of the obvious, this.) Stevens and Ginsburg, says Kennedy, " are forthright in declaring that the two procedures are indistinguishable and that Nebraska has acted both irrationally and without a proper purpose in enacting the law." But, he continues, "The issue is not whether members of the judiciary can see a difference between the two procedures. It is whether Nebraska can."

Kennedy points out that the Nebraska isn't alone in finding D&X partiulaly loathsome (cites removed):

    We are referred to substantial medical authority that D&X perverts the natural birth process to a greater degree than D&E, commandeering the live birth process until the skull is pierced. American Medical Association (AMA) publications describe the D&X abortion method as "ethically wrong." The D&X differs from the D&E because in the D&X the fetus is “killed outside of the womb” where the fetus has “an autonomy which separates it from the right of the woman to choose treatments for her own body.” “Intact D&X is aberrant and troubling because the technique confuses the disparate role of a physician in childbirth and abortion in such a way as to blur the medical, legal, and ethical line between infanticide and abortion.” Witnesses to the procedure relate that the fingers and feet of the fetus are moving prior to the piercing of the skull; when the scissors are inserted in the back of the head, the fetus’ body, wholly outside the woman’s body and alive, reacts as though startled and goes limp. D&X’s stronger resemblance to infanticide means Nebraska could conclude the procedure presents a greater risk of disrespect for life and a consequent greater risk to the profession and society, which depend for their sustenance upon reciprocal recognition of dignity and respect. The Court is without authority to second-guess this conclusion.

AMA Letter
Backing Rick Santorum's attempts to ban D&X

Here's to an Open Mind
A pro-choice doctor/legislator backs a PBA ban

Pro-Choice Doc Defends Abortion Limit
Dr. Frank Henry Boehm supports a PBA ban

Kennedy notes that even those who find all abortions deserve "the most severe moral condemnation, condemnation reserved for the most repulsive human conduct" find special and additional moral objections to D&X. Although Nebraska's hands are tied regarding banning abortion per se, the state still, Kennedy reminds us, has an interest in reminding citizens -- even abortionists and women about to elect abortion -- that abortion is ending a human life, a life worthy of respect. "The participants, Nebraska has determined, cannot be indifferent to the procedure used and must refrain from using the natural delivery process to kill the fetus. The differentiation between the procedures is itself a moral statement, serving to promote respect for human life; and if the woman and her physician in contemplating the moral consequences of the prohibited procedure conclude that grave moral consequences pertain to the permitted abortion process as well, the choice to elect or not to elect abortion is more informed; and the policy of promoting respect for life is advanced."

In a nutshell, Kennedy says that the Carhart decision usurps the State's legitimate interest in promoting respect for life. The ban, after all, would not come between a woman and her abortion. It would merely insist that an abortion remain an abortion, and birth remain birth. The state finds, and does have, a legitimate interest keeping the two processes separate, and in promoting respect for the baby as he or she emerges from the womb.

LeRoy Carhart and "maternal health"

Kennedy moves forward:

Interference vs. legitimate regulation

Kennedy also found fault with the opinion that the Nebraska law interfered with medical judgment. Even with a total ban on D&X procedures, there are an abundance of other abortion procedures held forth as safe by practitioners. On the other hand, there is animated debate about the safety of the D&X procedure. Kennedy reminds us (cites removed):

"The Court," Kennedy continues, "cannot conclude the D&X is part of standard medical practice." He notes that Carhart's witnesses have not themselves ever performed a D&X. "Litigation in other jurisdictions establishes that physicians do not adopt the D&X procedure as part of standard medical practice," Kennedy notes. "It is quite wrong for the Court to conclude, as it seems to have done here, that Dr. Carhart conforms his practice to the proper standard of care because he has incorporated the procedure into his practice. Neither Dr. Boehm nor Dr. Carhart’s lead expert, Dr. Stubblefield (the chairman of the Department of Obstetrics and Gynecology at Boston University School of Medicine and director of obstetrics and gynecology for the Boston Medical Center) has done so."

Kennedy also notes that "Carhart does not decide to use the D&X based on a conclusion that it is best for a particular woman." Carhart chooses the D&X method for reasons unrelated to maternal health or safety. The contention, therefore, that D&X must remain an option in order to further the interests of women's health or safety is invalid.

Carhart regresses to Akron and abandons Casey

Kennedy then addresses further judicial issues. Carhart, he points out, does not cite the Akron case -- which gave doctors performing abortions the right to withhold information from abortion patients. But Carhart uses the same reasoning as Akron: that a doctor/patient relationship in an abortion situation should be under the control of the doctor, without the state having any ability to intervene. Akron, however, was reversed by the Casey decision, which held that the physician's discretion is not absolute. The state does, per Casey, have a legitimate interest in regulating medical practice.

Akron v Akron Center for Reproductive Health
Overturned in Casey, Akron gave abortionists a "right" to withhold vital information from abortion patients.

Kennedy goes on to cite other cases in which the Court found that the States have a legitimate interest in regulating medical practice, such as United States v. Rutherford, which addressed regulatory processes for prescription drugs, and Jacobson V. Massachusetts, which upheld the State's right to require certain vaccinations.

Moving onward, Kennedy then addresses Justice O’Connor's statement that the law might be Constitutional if redrafted to allow D&X when “the procedure, in appropriate medical judgment, is necessary to preserve the health of the mother.” Kennedy points out that this is "meaningless." O'Connor, says Kennedy, "has joined an opinion which accepts that Dr. Carhart exercises 'appropriate medical judgment' in using the D&X for every patient in every procedure, regardless of indications, after 15 weeks’ gestation." "A ban which depends on the 'appropriate medical judgment' of Dr. Carhart is no ban at all," Kennedy notes. "He will be unaffected by any new legislation."

Willfully misconstrued

Next, Kennedy addresses the Court's finding that the D&X ban, as written in Nebraska, also would ban D&E abortions. Kennedy points out that "requiring a State to meet unattainable standards of statutory draftsmanship in order to have its voice heard on this grave and difficult subject is no different from foreclosing state participation altogether."

Kennedy quotes the legislation, which defines a partial birth or D&X abortion as “an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.” The statute further clarifies that “partially delivers vaginally a living unborn child before killing the unborn child” means “deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.”

Carhart claimed, and the Court accepted the claim, that this would cause confusion and potentially ban D&E abortions. But Kennedy cites experts who dismiss this idea:

Kennedy continues:

In case the reader has, like the Court, a difficult time grasping this concept, Kennedy further claririfies:

Moving on:

Kennedy further notes, "In light of the statutory text, the commonsense understanding must be that the statute covers only the D&X." The AMA, he notes, has said: “The partial birth abortion legislation is by its very name aimed exclusively at a procedure by which a living fetus is intentionally and deliberately given partial birth and delivered for the purpose of killing it. There is no other abortion procedure which could be confused with that description.”

Kennedy further notes that Casey holds that the Court should interpret a statute with generous leeway, not with an eye to finding some way, however unlikely it is to be interpreted that way by those enforcing it, in which it could concievably be construed to be Unconstitutional.

Kennedy also noted that, because the law was immediately enjoined by a lower court, the executive and judiciary branches of Nebraska's government were given no opportunity to interpret the law. The Court therefore erred by pre-empting the State's interest in intreperting its own law by making its own excessively convoluted interpretation of how it might be enforced.


Kennedy concludes:

News Archives

Are you as ticked off as I am, or as tickled as Carhart and the biotech company stock holders? Tell us in the Forum. As this page goes up, we have one "Hooray for Carhart" and one "He's the perfect poster child for abortionists." What do you think?

I'm not the only one with a bee in my bonnet over this:

  • AAPS Condemns Abortion Ruling
    The American Association of Physicians and Surgeons takes umbrage.
  • Act of Judicial Infamy
    George Will takes umbrage, and points out a bitter irony of the Carhart decision.
  • Full Dissent on Partial Birth Abortion
    U.S. Supreme Court Justice Antonin Scalia takes official umbrage.

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