Let the Battle Begin
On November 8, the Supreme Court of the
This last week, I did a Moot Court oral argument for the case at the William & Mary School of Law. My argument to the panel was very direct, and today I thought it would be helpful to give you a flavor of what I presented to the Court in this Moot Court argument. I noted that in adopting a ban on partial-birth abortion, Congress, with bipartisan support, drew a bright line between abortion and a procedure that many, including Justices of the Supreme Court, consider infanticide. As Justice Kennedy duly noted in his dissent in Stenberg, the Government chose to forbid a procedure that many decent and civilized people find so abhorrent as to be among the most serious crimes against human life. The trial courts that heard the partial-birth abortion cases, as well as the Courts of Appeal, disregarded the extent of Congressional fact-finding that took place over an 8-year period. In essence, these Courts of Appeal relegated Congresss role as a fact-finder to nothing more than an advisory board. Simply put, Congressional fact-finding cannot be treated as mere suggestions.
When Congress found that partial-birth abortion is never necessary to preserve the health of a woman and, in fact, poses a serious threat to a womans health and lies outside the accepted standard of medical care, the Courts of Appeal ignored them. They also ignored the Supreme Courts decision in Turner. With even a cursory review of the legislative record in this case, there can be no doubt that in developing its findings of fact, Congress drew reasonable inference based on substantial evidence that partial-birth abortion is not necessary to preserve the health of the mother.
In all of the discussions about judicial activism that have taken place across the country, this case certainly presents an opportunity for the Court to respect a co-equal branch of government. The Courts sole obligation is to assure that in formulating its judgments, Congress has made reasonable inferences based on substantial evidence. Here the evidence is substantial. Congress duly noted that the physician credited with developing the partial-birth abortion procedure has testified that he has never encountered a situation where a partial-birth abortion was medically necessary to achieve the desired outcome. This evidence was further bolstered by Dr. Charles Lockewood, Chairman of OB/GYN at Yale and specialist in maternal-fetal medicine, who stated that there is no evidence that the D&X [partial-birth abortion] offers advantages over medical termination and D&Es [dilation & evacuation]. He later went on to state that he cannot conceive of a circumstance where intact D&X is the only option for terminating a pregnancy because there are very reasonable termination methods. This comes from a doctor who supports abortion rights and opposed the Act. There is no doubt that we find both the D&E and the D&X procedures to be abhorrent and equally gruesome. However, the D&X procedure is considered by many people to constitute infanticide, and with good reason: the child is located outside the mother at the time the abortion is performed.
Even the Plaintiffs own study performed by a plaintiff in the case, Dr. Stephan Chasen, hurt their position. First, the trial court said that the Chasen study [c]annot be considered conclusive on the issue. Further, the study itself noted that the risks of premature births after a D&X procedure were three times greater than after any other abortion procedure. The American Medical Association said, Partial-birth abortion is a procedure which is never the only appropriate procedure.
The evidence supporting the constitutionality of the Act is significant and substantial. Under the National Organization for Womens theory, one doctor can override an Act of Congress. This is not the way our constitutional Republic has been set up. The Supreme Court has a unique opportunity to, once and for all, declare this practice unacceptable in a civilized society. Our hope and prayer is they do just that.