Our Faith-Based Justices

In their recent abortion ruling, did five justices ignore the critical line between religious belief and public morality?


Gonzales v. Carhart

, the Supreme Court, in a five-to-four decision,

upheld the constitutionality of a federal law prohibiting so-called “partial birth abortions”

(properly described as “intact dilation and evacuation” or “intact D & E”) -- despite the absence of any statutory exception that would allow the procedure to be used when necessary to protect the health of the woman. Seven years ago, before the appointments of Justices Roberts and Alito, the Supreme Court held a virtually identical state law unconstitutional.

As Justice Ruth Bader Ginsburg made clear in her scathing dissenting opinion, the Court’s decision has put at risk the health of women who suffer from heart disease, uterine scarring, bleeding disorders, compromised immune systems, and certain pregnancy-related conditions, such as placenta previa and accreta, as well as those women carrying fetuses with certain abnormalities, such as severe hydocephalus. In all of these circumstances, and many others, the availability of intact D & E may be necessary to ensure the health of the woman.


It is important to note that the prohibition of intact D & E has nothing to do with preserving the life of a fetus. The “partial birth abortion” law does not prohibit any abortions. Rather, it prohibits only a particular


of performing abortion. If the woman is willing to undergo a greater than necessary risk to her health, she may terminate her pregnancy by other, less safe, methods. She may, for example, have the fetus terminated by injection prior to extraction, or removed by cesarean, or extracted by non-intact D & E (which involves dismembering the fetus in utero).

What, then, explains this decision? To be frank, the Court’s opinion is a hodgepodge of confusing and sometimes offensive ramblings about how women may “regret” having abortions and about how intact D & E “resembles” infanticide. But none of the Court’s musings credibly distinguish its earlier precedents. Never before has the Court allowed the state to restrict a woman’s right to terminate a pregnancy

without an express statutory exception to protect the health or life of the woman
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Geoffrey R. Stone
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