First of all, I’m not a lawyer – I do, in point of fact, have a soul.
Second, the Supreme Court is hardly supreme, given their serious flaws in
logic.
Recently, the US Supreme Court handed down an opinion on the constitutionality
of the 2003 federal statute titled “Partial Birth Abortion Ban” that sided
with the ban, throwing out many years of commonly accepted jurisprudence.
Well, it would be prudent to point out the flaws in the logic, and further to
propose a definition with which the Court can provide clear direction in the
future.
Without getting into name calling, or, as Justice Kennedy exampled finely,
pejoratives, I would like to provide a little logic help for these
justices.
Congress determined that this Court in Stenberg “was required to accept the
very questionable findings issued by the district court judge,” §2(7), 117
Stat. 1202, notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 768,
¶(7) (Congressional Findings), but that Congress was “not bound to accept the
same factual findings,” ibid., ¶(8). Congress found, among other things, that
“[a] moral, medical, and ethical consensus exists that the practice of
performing a partial-birth abortion . . . is a gruesome and inhumane procedure
that is never medically necessary and should be prohibited.”
In Response: I hate to point out to the court that a fact is a fact and they
have just agreed that congress can operate on different facts than the court.
There can not be two contradictory facts while both retain their label as
fact. If a contradiction exists, one of them is not fact. That, dear Mr.
Kennedy, is a fact.
In Roe Vs. Wade, there are 3 fundamental requirements to be met in order to
ensure that the choice and privacy concerns of women were protected:
-
A woman has the right to choose to have an abortion before fetal viability
and to obtain it without undue interference from the State. -
The State has the power to restrict abortions after viability, if the law
contains exceptions for pregnancies endangering the woman’s life or health. -
The State has legitimate interests from the pregnancy’s outset in protecting
the health of the woman and the life of the fetus that may become a child.
In this case, the court has outright ignored the 3 holdings of the Roe court,
then completely distorted the third. They suggest that all three were
considered, however it is the 3rd that requires the “extended discussion”. The
only reason an extended discussion is required is to obfuscate the truth and
come to an illogical conclusion. Let me provide some help: in the third holding,
there is one word that is key: “and”. In formal logic, the term “and” requires
it’s preceding phrase along with the phrase following it to be considered
together, otherwise the they would use the word “OR” to provide for separate
consideration of each phrase. So, the phrase “protecting the health of the woman
and the life of the
fetus” should necessarily mean that both the “woman’s health” and the “life of
the fetus” must be considered together, not separately as was done in this
opinion. For future reference, Mr. Kennedy, you should use the word “Or” to
consider two things independently, as in, “protecting the health of the woman
OR
the life of the fetus”. Just an FYI on basic logic that your local
community college can provide instruction in, should you desire to raise your
logic prowess. (an aside: it is embarrassing that I know more about logic than a
supreme court justice.)
Here I would like to point out an additional flaw in Mr. Kennedy’s judgment –
the use of the word “kill” when referring to aborting a fetus. Given that the
fetus, until “viable outside the womb”, is the same as an organ in the body, one
would not suggest that if you had your spleen removed, then destroyed, you had
just “killed the spleen”. So, Mr. Kennedy, killing a fetus is as impossible as
killing the small intestine or a lung. The proper term for that process is
“destroy” – you “destroy a fetus”.
This leads me to a quick discussion of viability – which this court all but
ignored. In Casey, the court upheld the
findings in Roe where a woman has a
“right to choose to have an abortion before fetal viability
AND
to obtain it without undue interference from the State.” Note again, Mr.
Kennedy, the word
“and“.
Here, there are two requirements to be met for a statute to stand: 1.
performance of the abortion before viability
AND
be free from undue interference from the state.
Further, Roe stated, “With respect to the State’s important and legitimate
interest in potential life, the “compelling” point is at viability.” Mr. Kennedy
has ignored this very clear mandate.
Additionally, in Roe, the court held that “… a State may regulate the abortion
procedure to the extent that the regulation reasonably relates to the
preservation and protection of maternal health. Examples of permissible state
regulation in this area are requirements as to the qualifications of the person
who is to perform the abortion; as to the licensure of that person; as to the
facility in which the procedure is to be performed, that is, whether it must be
a hospital or may be a clinic or some other place of less-than-hospital status;
as to the licensing of the facility; and the like.” (Roe Vs. Wade, section X,
paragraph 3)
Given these clear instructions – especially the regulation of procedures after
the first trimester – this court has neglected its duty and shown itself as the
predator of Constitutionally mandated rights.
Now, getting back to viability: I am inspired by the Blackmun court’s ability to
hone in on a difficult point – the balance between protecting the life of a
citizen (potential or otherwise) and protecting the rights of a citizen already
alive. Viability is ideal – it doesn’t provide an unrelated, potentially
different for each person, hard target, e.g. 20 weeks into pregnancy. Instead it
provides a simple and effective understanding of when the state takes an
interest in the potentiality of life. When a fetus is capable of living outside
the womb, e.g. it’s fundamental life supporting organs have been developed
enough to sustain it, then the fetus is viable. This is a simple test the
performing doctor can carry out to determine the state of the fetus using
ultra-sound or other technologies.
The advent of medical science breakthroughs should not affect this “viability”
point in the pregnancy. Regardless of technological advancements, the standard
by which the fetus should be considered viable is what I term, “Natural
Viability”, or, the ability of the fetus to survive outside the womb, without
medical intervention. The phrase, “without medical intervention” is important
here because in the US, access to the whole spectrum of medical advances is not
available to every American woman. Unless the state intends to provide full
access to the greatest range of medical advancements and services, there will be
an inherent inequality in the application of the “viability standard”. A poor
woman without health insurance, possibly unable to determine she is pregnant
within the first trimester will have an undue burden procuring an abortion,
whereas a woman with means will be advantaged. Further, if one were to consider
the implications of viability due to medical advancements, then a poor woman
without access to these expensive medical services should enjoy the right to an
abortion until “viability” is reached based on the medical offerings she can
afford. This serves to “deny to any person within its jurisdiction the equal
protection of the laws.” (Amendment XIV, US Constitution), since a wealthy woman
would be cut off from services after the first trimester and a poor woman
wouldn’t. Because of these conflicts, the lowest common denominator should apply
– the standard of Viability should be the “Natural Viability” of the fetus.