Twelve years ago tomorrow the Supreme Court upheld the historic ban on Partial-Birth Abortion

By Dave Andrusko

For four decades National Right to Life has been at the eye of the abortion hurricane, acting as the calm, disciplined center of pro-life politics, education, and legislation.

That was never more on display than twelve years ago tomorrow when, on April 18, 2007, the United States Supreme Court upheld the federal ban on the hideous partial-birth abortion “technique” in Gonzales v. Carhart.

Pro-life President George W. Bush had signed The Partial-Birth Abortion Ban Act into law on November 5, 2003. President Bush said, in part,

In passing this legislation, members of the House and Senate made a studied decision based upon compelling evidence. The best case against partial birth abortion is a simple description of what happens and to whom it happens. It involves the partial delivery of a live boy or girl, and a sudden, violent end of that life. Our nation owes its children a different and better welcome. The bill I am about to sign protecting innocent new life from this practice reflects the compassion and humanity of America.

In the course of the congressional debate, the facts became clear. Each year, thousands of partial birth abortions are committed. As Doctor C. Everett Koop, the pediatrician and former Surgeon General has pointed out, the majority of partial birth abortions are not required by medical emergency. As Congress has found, the practice is widely regarded within the medical profession as unnecessary, not only cruel to the child, but harmful to the mother, and a violation of medical ethics.

The facts about partial birth abortion are troubling and tragic, and no lawyer’s brief can make them seem otherwise. By acting to prevent this practice, the elected branches of our government have affirmed a basic standard of humanity, the duty of the strong to protect the weak. The wide agreement amongst men and women on this issue, regardless of political party, shows that bitterness in political debate can be overcome by compassion and the power of conscience. And the executive branch will vigorously defend this law against any who would try to overturn it in the courts.

(You can read his full remarks here.)


As veteran pro-lifers recall, the Supreme Court’s 5-4 decision in Gonzales was the culmination of a long, long educational battle NRLC undertook to awaken the nation’s conscience to an abortion procedure so grotesque that frantic pro-abortionists had no choice but to pretend they didn’t exist (not true) or were “rare” (even less true).

The Partial-Birth Abortion Ban Act, developed in collaboration with NRLC, was introduced on June 14, 1995. The House first passed the bill on November 1, 1995, on a vote of 288-139.

The Senate first passed the bill on December 7, 1995, by a vote of 54-44. In the 104th and 105th congresses, Congress approved the ban but President Clinton vetoed the bills; in both of those congresses, the House overrode but the Senate sustained.

In the 106th Congress, both the House and Senate passed similar bills, but no final bill was approved. In the 107th Congress (2002), the House passed the ban, but the Senate Democratic leadership blocked it from coming to the Senate floor.

In 2003 the bill won final approval in the House on October 2, 281-142, and in the Senate on October 21, 64-34.

“Roe is falling” response

So what was it about the decision that spurred pro-abortionists to apocalyptic, Roe-is-falling rhetoric? What did the New York Times mean when it wrote, “The Supreme Court broke new ground yesterday in upholding federal restrictions on abortion”?

First and foremost, the decision “marked the first time justices have agreed that a specific abortion procedure could be banned.” Justice Kennedy explained in excruciating detail the hideous manner in which the abortionist takes the life of an unborn child when using the partial-birth abortion technique.

Once he finished talking in abstract medical terms, Justice Kennedy quoted from “another description”—“a nurse who witnessed the same method performed on a 26-week fetus and who testified before the Senate Judiciary Committee:

“Dr. Haskell went in with forceps and grabbed the baby’s legs and pulled them down into the birth canal. Then he delivered the baby’s body and the arms—everything but the head. The doctor kept the head right inside the uterus… .

“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… .

“He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.”

As I wrote at the time Gonzales “added layers of intellectual, moral, and real-life complexity. Prior to Gonzales, it was as if the Supreme Court talked about abortion in one-syllable words. As complicated as the legal jargon might be, the discussion was absurdly simplistic and, therefore, radically misleading.” That ended in Justice Kennedy’s majority opinion.

Moreover, for 34 years, ever since Roe v. Wade, the Court had its thumb on the scales of justice, giving pro-abortionists an impossible-to-overcome advantage. If pro-life litigants are routinely given a fair shake in court, it would be a huge loss for pro-abortionists.

To cite two of the changes in Gonzales v. Carhart: (1) there was no longer an automatic deference to the testimony (and wishes) of abortionists; and (2) there was a renewed willingness to give words their commonly understood meaning.

Justice Kennedy cited “the canon of constitutional avoidance” by which “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.”

In some ways Pulitzer Prize Winner Paul Greenberg may have put it best when he wrote,

“This decision represents a small but definite move back toward what might be called the wisdom of repugnance, the instinctive recognition that there are still some things we cannot bring ourselves to do—even in the 21st century, and even after all the horrors of the 20th.”