Stop the Tyrants Part II

Integrity Down the Drain

§H   Extending Roe while Pretending to do Otherwise

Besides creating a curtain of lies to hide their pro-abortion activism, the five members of the Stenberg majority have committed one other very serious Judicial High Crime and Misdemeanor. They have extended the already unconstitutional jurisprudence of the Roe and Casey decisions. They have insisted that any law on partial-birth abortion must contain an exception that allows a physician the right to perform this procedure whenever he thinks it may be marginally better than other methods at preserving a pregnant woman's health. They insist that the Roe and Casey rulings require this new health exemption rule. But this is not true, as Justice Thomas ably explained:

The majority and Justice O'Connor suggest that their rule is dictated by a straightforward application of Roe and Casey. But that is simply not true. ...These cases addressed only the situation in which a woman must obtain an abortion because of some threat to her health from continued pregnancy. But Roe and Casey say nothing at all about cases in which a physician considers one prohibited method of abortion to be preferable to permissible methods. Today's majority and Justice O'Connor twist Roe and Casey to apply to the situation in which a woman desires - for whatever reason - an abortion and wishes to obtain the abortion by some particular method. In other words, [they] fail to distinguish between cases in which health concerns require a woman to obtain an abortion and cases in which health concerns cause a woman who desires an abortion (for whatever reason) to prefer one method over another. [Thomas dissent: Page 33]
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. [Thomas dissent: Pages 35 - 36, emphasis added]

These "Justices" in the Stenberg majority are not simply refusing to overrule the unconstitutional jurisprudence of the Roe and Casey decisions. They have extended it to create an even larger abortion right!

Legislatures have opted not to include a health exemption when banning partial-birth abortions for a very good reason: As Congressman Henry Hyde told the House, "Health exemptions are so broadly construed by the [judiciary], as to make any ban utterly meaningless." So the wonderfully compassionate Stenberg majority has virtually guaranteed that partial-birth abortion cannot be done away with. All so homicidal maniacs like Leroy Carhart can mercilessly slaughter babies who are only a couple of inches from full birth!

Justice Kennedy helped write the Casey decision. You may be wondering: What does he think of this new health exemption rule? He makes his opinion quite clear:

Demonstrating a... basic misunderstanding of Casey, the Court holds the ban on the D&X; procedure fails because it does not include an exception permitting an abortionist to perform D&X; whenever he believes it will best preserve the health of the woman. Casting aside the views of distinguished physicians and the statements of leading medical organizations, the Court awards each physician a veto power over the State's judgement that the procedures should not be performed. ...Requiring Nebraska to defer to Dr. Carhart's judgment is no different than forbidding Nebraska from enacting a ban at all; for it is now Dr. Leroy Carhart who sets abortion policy for the State of Nebraska, not the legislature or the people. [Kennedy dissent: Pages 9 - 10]

In her concurring opinion, Justic O'Connor assured the people of Nebraska that the flaws in their ban could be easily corrected. Given the truth about the majority's new health-exemption requirement, this assurance is just so much smoke and mirrors, as Justice Kennedy states without hesitation:

Justice O'Connor assures the people of Nebraska they are free to redraft the law to include an exception permitting the D&X; to be performed when 'the procedure, in appropriate medical judgement, is necessary to preserve the health of the mother.' The assurance is meaningless. She has joined an opinion which accepts that Dr. Carhart exercises "appropriate medical judgement" 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 judgement" of Dr. Carhart is no ban at all. He will be unaffected by any new legislation. This, of course, is the vice of a health exception resting in the physician's discretion. [Kennedy dissent: Page 17, emphasis added]

See the Chapter 3 Table of Contents.

The Stop the Tyrants Project [page 18]: Chapter 3 (Section H)
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