As President Obama made his first official visit to China, new information on China’s “one-child policy” surfaced in the media.

In an article published last week, The Washington Post revealed that “monetary incentives and penalties are attached to population targets,” creating what amounts to “bounties on the unborn,” according to a 2009 State Department report. Technically, it is illegal in China to kill a baby, but family- planning imperatives sometimes prevail. Unfortunately, according to the same source, as recently as July, China’s National Population and Family Planning Commission said that the one-child policy “will be strictly enforced as a means of controlling births for decades to come”.

While Chinese officials insist that abortions are voluntary under the one-child policy, the Post’s article informs about recent electronic documentation that shows coerced abortions and involuntary sterilizations are still commonplace in China.

The consequences of these violent and dehumanizing policies are many. Besides killing millions of children, abortions, especially late term abortions, claim the lives of the mothers as well, as evidenced by reports from China. Whatsmore, about 500 women a day commit suicide there. This is the highest rate in the world and it is attributed in part to coercive family planning.

Rep. Chris Smith, a long time champion of Chinese human rights and Chairman of the House Human Rights Committee, also pointed out the atrocious harms to Chinese women, exclaiming that “China’s coercive population control program has imposed unspeakable violence, pain and humiliation on hundreds of millions of Chinese women, many of whom suffer lifelong depression as a consequence.”

Furthermore, China has used abortion for sex-selective purposes because of a traditional (cultural) preference for boys. This has resulted in a tremendous gender imbalance with Chinese men outnumbering Chinese women by 37 million.  In this regard, Smith stated, “As a direct result of the government’s one-child policy, tens of millions of girls are missing today…The lost girls of China is a gendercide.”

While the Post rightfully asserts that “[a]verting our gaze from China’s horrific abuse of women is [a choice],” they neglect to mention the U.S.’s involvement in supporting China’s coercive family planning policies (including coerced abortions and forced sterilizations) is also a “choice.”  The Fiscal Year 2009 omnibus spending bill passed by the House this past March created an exception to allow unrestricted funding of the United Nations Population Fund (UNFPA) including their operations in countries (such as China) that force women to abort or to be sterilized.  In approving the spending, 55 U.S. Senators voted to reject Senator Roger Wicker’s attempt to protect U.S. taxpayers from funding coercive abortions through the UNFPA.

In light of President Obama’s emphasis on human rights while in China this week, the U.S. should strongly consider withdrawing U.S. taxpayers’ money from operations funding these dehumanizing policies in China.

Americans United for Life experts have created comprehensive model legislation and policy guides to address these issues. For a copy of the 2010 Coerced Abortions Legislative Guide, please click here.  For the 2010 Legislative Guide on Sex Selective and Genetic Abnormality, please click here.

When the Fourth Circuit Court of Appeals upheld Virginia’s ban on partial-birth infanticide yesterday, the ruling’s language had a familiar ring to Americans United for Life’s legal team.

That’s because the 6-5 decision in Richmond Medical Center v. Herring used some of the same arguments made by AUL in the amicus brief we filed in the case.

The plaintiffs made a facial challenge to the Virginia law — arguing that,  as written — as opposed to as applied — the law was unconstitutional.  They argued that the court should apply the “large fraction” test used in parts of Planned Parenthood v. Casey, which posited that a law could be unconstitutional if it were invalid in a “large fraction” of its applications.

By contrast, our brief argued that the court, in determining its legality, must apply the traditional facial standard—that a law is unconstitutional only if invalid in all of its applications.

We added that the statute could not “be invalidated through a facial challenge attack even under Casey’s ‘large fraction’ standard.”  Specifically, we outlined that Gonzales v. Carhart demonstrated that that the category of “relevant cases” to be examined in the “large fraction” standard is broader than that which courts have been evaluating in recent years.  In Gonzales, the “relevant cases” were not only those women who suffered from medical complications and might, at some hypothetical time, require a D&X procedure (the medical term for partial-birth infanticide).  Instead, the “relevant cases” referred to all instances in which the doctor proposed to do the prohibited procedure.

As we argued, the plaintiff’s own words made the flaw in their argument obvious:

Likewise, in the case at hand, the “relevant cases” refers not only to those “small fraction” of situations where a D&X is “accidentally” performed; instead, “relevant cases” refers to all cases of partial birth infanticide performed in the State of Virginia—both purposeful and accidental.  Because the “accidental” D&X is—by the Plaintiffs’ own admission—only a “small fraction” of these relevant cases, the Virginia statute cannot be invalidated through a facial challenge attack even under Casey’s “large fraction” standard.

We emphasized this conclusion by pointing to the conclusion in Ayotte v. Planned Parenthood (where the U.S. Supreme Court overturned a broad injunction against New Hampshire’s parental-notice law that was only, arguably, invalid in a limited number of applications) that if a statute was invalid in only a few applications, a court should craft a remedy to meet only those few applications.

While the Fourth Circuit ruling did not specifically mention our brief, the court clearly agreed with our arguments. It outlined the tension between the traditional facial standard and the “large fraction” test.  It concluded that it need not decide which standard applied, because even under the Casey “large fraction” test, the plaintiff’s claims failed.

Likewise, the Fourth Circuit concluded:

[The plaintiff] testified that in less than 0.5% of the cases, a fetus is presented in a breech position and accidentally emerged intact up to its head, at which point the head becomes lodged in the cervix. …  It is the rare circumstance when the fetus in breech position emerges intact to its naval on which [the plaintiff] relies to mount a facial challenge. … But Gonzales v. Carhart requires that we evaluate the constitutionality of the Act and appropriateness of the facial challenge based on “all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications.”

This conclusion is significant not only because we urged it in our brief, but also because it is the first instance that this particular portion of Gonzales has been interpreted as such in the abortion context.  It represents a departure from the broad “large fraction” test, where the only circumstances weighed were those urged by the abortion industry.

The abortion industry’s argument, used by the plaintiffs in this case, that the range of cases that must be examined to determine the constitutionality of a law is very narrow — those hard cases that are usually stacked in its favor — when in reality the universe of cases that a court should examine to determine if there is an “undue burden” is much larger. Under the Fourth Circuit decision  the “relevant cases” category represents a broader range of abortions and makes it more likely for state Attorneys General to defend their common-sense abortion regulations.

The court’s language on this point could not be more emphatic: “To hold the Virginia Act facially unconstitutional for all circumstances based on the possible rare circumstances presented by [the plaintiff] is not appropriate under any standard for facial challenges.”

In addition to our amicus brief, AUL’s involvement in Richmond Medical Center v. Herring included practical aid for Virginia’s then-Solicitor General William Thro. AUL Senior Counsel Clarke Forsythe participated in mooting the case — acting as a mock questioner to help Thro prepare for oral arguments in the case.

In a 6-5 decision yesterday in Richmond Medical Center v. Herring, the Fourth Circuit Court of Appeals upheld Virginia’s ban on partial birth infanticide—a law which mirrors the federal ban on partial-birth abortion.

“We are thrilled that the Fourth Circuit followed clear Supreme Court precedent and upheld Virginia’s ban on partial-birth abortion – which is more accurately called partial-birth infanticide,” stated AUL President and CEO Dr. Charmaine Yoest.  “This ban protects not only the unborn, but also the health and welfare of women.  It is a law that the vast majority of Americans are justified in supporting.”

Added AUL Vice President of Legal Affairs Denise Burke, “A wealth of medical evidence demonstrates that late-term abortions — and particularly partial-birth abortions — can have devastating health effects, including uterine puncture or rupture, puncture of the uterine artery, permanent injury to the cervix, and risks for subsequent pregnancies By upholding Virginia’s statute, the Fourth Circuit has protected women from these grievous and very real risks.”

Mailee Smith, Staff Counsel at AUL, said, “We are also pleased that the Fourth Circuit has given deference to the actions of the Virginia legislature, affirming the state’s significant interest in protecting women and children from the harms inherent in abortion.”

The decision follows a previous ruling by a three-judge panel of the Fourth Circuit striking the law as unconstitutional.  The state requested rehearing by the full court, and today’s decision is the result of that review.  Abortion supporters are expected to ask the U.S. Supreme Court to review today’s decision.

AUL provided litigation support to the state and filed an amicus brief supporting Virginia’s law.  The brief was filed on behalf of 11 members of the Virginia legislature, including Delegate Robert G. Marshall, who was the chief patron of the enabling legislation.  The brief was also filed on behalf of U.S. Sen.Tom A. Coburn, M.D.

LEARN MORE: AUL Staff Counsel Mailee Smith explains why state bans are needed given the federal partial-birth abortion ban.

A so-called “Freedom of Choice Act” (FOCA) in Illinois (IL House Bill 2354) is scheduled for a hearing at the State House at 8:00 AM on Wednesday, March 4.

Like the federal FOCA introduced in the 110th Congress, and state versions that have recently been introduced in other states such as New Mexico, the Illinois FOCA would authorize a nurse, in any public school in the state, to do an abortion on a minor girl, at any time of pregnancy, without any parental knowledge.  The bill then specifically immunizes such a nurse from any civil or criminal claim by any parent in Section 25(a).

The Illinois FOCA would repeal Illinois physician-only law and all other Illinois limits on abortion by virtue of declaring abortion to be a “fundamental right” and by prohibiting (in Section 15) any “interference” with the fundamental right and by prohibiting “discrimination” in funding in Section 20.

The FOCA would also eliminate the Illinois prohibition on partial-birth abortion and repeal other existing abortion regulations.

The declaration of abortion as a “fundamental right” would extend from conception to birth and thereby strike down any regulations of abortion throughout pregnancy.

Section 35 of the Illinois FOCA also tramples on conscience rights.

It would also require public funding of abortion from conception to birth by requiring that abortion be treated equally with childbirth.

National Sanctity of Human Life Day, 2009
A Proclamation by the President of the United States of America

 
All human life is a gift from our Creator that is sacred, unique, and worthy of protection. On National Sanctity of Human Life Day, our country recognizes that each person, including every person waiting to be born, has a special place and purpose in this world. We also underscore our dedication to heeding this message of conscience by speaking up for the weak and voiceless among us.

The most basic duty of government is to protect the life of the innocent. My Administration has been committed to building a culture of life by vigorously promoting adoption and parental notification laws, opposing Federal funding for abortions overseas, encouraging teen abstinence, and funding crisis pregnancy programs. In 2002, I was honored to sign into law the Born-Alive Infants Protection Act, which extends legal protection to children who survive an abortion attempt. I signed legislation in 2003 to ban the cruel practice of partial-birth abortion, and that law represents our commitment to building a culture of life in America.

Also, I was proud to sign the Unborn Victims of Violence Act of 2004, which allows authorities to charge a person who causes death or injury to a child in the womb with a separate offense in addition to any charges relating to the mother.

America is a caring Nation, and our values should guide us as we harness the gifts of science. In our zeal for new treatments and cures, we must never abandon our fundamental morals. We can achieve the great breakthroughs we all seek with reverence for the gift of life.

The sanctity of life is written in the hearts of all men and women. On this day and throughout the year, we aspire to build a society in which every child is welcome in life and protected in law. We also encourage more of our fellow Americans to join our just and noble cause. History tells us that with a cause rooted in our deepest principles and appealing to the best instincts of our citizens, we will prevail.

NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim January 18, 2009, as National Sanctity of Human Life Day. I call upon all Americans to recognize this day with appropriate ceremonies and to underscore our commitment to respecting and protecting the life and dignity of every human being.

IN WITNESS WHEREOF, I have hereunto set my hand this fifteenth day of January, in the year of our Lord two thousand nine, and of the Independence of the United States of America the two hundred and thirty-third.

GEORGE W. BUSH

FOR IMMEDIATE RELEASE
December 11, 2008

Americans United for Life Releases Eight New Model Legislation & Policy Guides: Twenty-Three Model Legislation & Policy Guides Now Available

Chicago, Illinois — Americans United for Life (AUL) today released its 2009 Model Legislation & Policy Guides. With the addition of eight new guides this year, AUL now offers 23 pieces of model legislation on key issues related to abortion, protection of unborn victims of violence, bioethics, healthcare rights of conscience, and the end-of-life.

Dr. Charmaine Yoest, AUL President & CEO said, “AUL is the leading developer of cutting-edge pro-life legislation that saves lives today and lays the groundwork for a nation in which everyone is welcomed in life and protected in law.”

New additions to AUL’s library of model legislation include a state legislative resolution opposing the federal Freedom of Choice Act (FOCA), a prohibition on coerced abortions, and The Child Protection Act—comprehensive legislation to ensure abortion providers report child sexual abuse and prevent the transportation of children across state lines for clandestine abortions.

Denise Burke, AUL Vice President of Legal Affairs added, “Each year, AUL legal and policy experts provide extensive consulting and support to legislators across the nation, helping to enact protective laws that advance a culture of life. We look forward to partnering with legislators and pro-life allies in 2009 to build on our past successes.”

All of AUL’s Model Legislation & Policy Guides are available at http://www.aul.org/Legislative_Guides

On November 4, 2008, the pro-life movement suffered losses on five state ballot initiatives. Yet there is much we can learn from the three pro-life ballot initiatives defeated (in California, Colorado, and South Dakota) and the two anti-life ballot initiatives passed (in Michigan and Washington). 

Specifically, these losses demonstrate that legislative efforts at the state level must remain at the forefront of the cause for life during the coming Obama administration. With dangerous legislation like the Freedom of Choice Act—a radical bill Obama has promised to sign—looming, pro-life forces continue to enact laws protecting women and the unborn from the negative impact of abortion and take immediate action to counter the increased efforts by abortion advocates to enshrine abortion-on-demand into American law. We have learned that our greatest successes—as demonstrated in South Dakota—have come not through ballot initiatives, but through such state legislative action.

To read the entire article, please visit the Culture of Life Foundation’s website at http://culture-of-life.org//content/view/519/1/

Chicago, Illinois — Americans United for Life (AUL) today filed an amicus brief arguing Virginia’s Partial Birth Abortion Infanticide Act is constitutional and should be upheld.

AUL Staff Counsel Mailee Smith stated, “Time and time again, the U.S. Supreme Court has affirmed that states have a significant interest in protecting women and children from the harm inherent in abortion. That is precisely what the Act does.”

AUL Vice President & Legal Director Denise Burke stated, “In an earlier decision, a three-judge panel ’split hairs’ looking for conflict where there was none, in a seeming effort to strike down a law nearly identical to the federal partial-birth abortion ban upheld by the U.S. Supreme Court last year.”

“Courts usually give great deference to legislative enactments, making every effort to find them constitutional and enforceable. Here, the panel did the opposite,” Burke continued.

In their brief, AUL argues the usual standard of deference to legislative enactments should apply to Virginia’s Partial Birth Infanticide Act.

The Act was ruled unconstitutional by a three-judge panel despite the fact that it mirrors the federal partial birth abortion ban upheld by the Supreme Court in its Gonzales decision in April 2007.

AUL’s amicus curiae brief was filed on behalf of Virginia Delegate Robert G. Marshall (chief patron of the ban when it was enacted in 2003), ten other Virginia legislators, and U.S. Senator Tom A. Coburn, M.D., in the case Richmond Medical Center v. Herring, challenging Virginia’s Partial Birth Infanticide Act. The case is currently before the entire panel of Fourth Circuit judges. Oral argument in the case is scheduled for October 28, 2008.

AUL’s brief is available online (PDF).

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202-289-1479

Kansas legislators won a significant victory today over notorious abortionist George Tiller. Tiller, who has been charged with 19 misdemeanors for violating the state’s late-term abortion law, had argued that certain provisions of the law were unconstitutional, and that therefore the case against him should be dismissed. Judge Owens denied that motion today.

With the help of AUL, 20 Kansas legislators filed an amicus curiae brief last summer demonstrating that Kansas’ late-term abortion law—and particularly the provision requiring a physician unaffiliated with the abortionist confirm the medical need for the abortion—is entirely constitutional.  The legislators established that, under United States Supreme Court precedent, the state’s interest in life is substantial after viability; that extra cost or delay do not constitute undue burdens; and that abortion may be treated differently from other medical procedures.  The legislators also demonstrated that physicians’ rights are not paramount, and that Tiller misrepresented court decisions in making his arguments.

Now that Tiller’s motion has been denied, the case should proceed—meaning that one of the nation’s most notorious abortionists will finally stand trial.

The brief filed by AUL can be read here (PDF). AUL filed the brief on behalf of Kansas Senators Karin Brownlee, Les Donovan, Sr., Mark Gilstrap, Tim Huelskamp, Phillip Journey, Julia Lynn, Peggy Palmer, Dennis Pyle, Ralph Ostmeyer, and Susan Wagle and KAnsas Representatives J. David Crum, Owen Donohoe, Benjamin Hodge, Steve Huebert, S. Mike Kiegerl, Lance Kinzer, Ray Merrick, Rob Olson, Virgil Peck, Jr., and Arlen Siegfreid.

In an important 6-4 decision today, the Fourth Circuit announced that it will rehear en banc a case involving the constitutionality of Virginia’s partial birth abortion ban.  The original panel of three appellate judges had originally declared the statute—with provisions nearly identical to that of the Supreme Court-affirmed federal ban—unconstitutional. 

Despite the statute’s clear provision excluding other forms of abortion from its prohibition, the Fourth Circuit panel concluded that the statute prohibits all D&E abortions, making its reach unconstitutional according to Gonzales v. Carhart.  The court’s convoluted reasoning was as follows: there is no “intent” provision at the beginning of the procedure.  The requirement that an abortionist intend to perform a partial birth abortion does not attach until the baby has already been extracted intact.  At that point, any action taken to kill the baby is an overt action, making the abortion an intentional partial birth abortion.  The court stated that this meant that if an abortionist began the procedure intending to perform a D&E, but “accidentally” drew the baby out intact with the head lodging in the mother’s cervix, any act from that point on is intentional and punishable.

However, and as the state argued in its briefs, the “intent” requirement clearly attaches from the very beginning of the procedure.

This case has a number of important implications.  First, the Fourth Circuit’s initial decision is clearly testing the United States Supreme Court’s (USSC) decision in Gonzales v. Carhart.  In essence, the Fourth Circuit panel is manifestly deviating from the USSC’s instruction in that case.

Second, the outcome of the case could have significant effects in other states.  Currently, there are at least four state partial birth abortion bans in place that either 1) have already been litigated and found constitutional, or 2) mirror the constitutional federal law. 

However, there are at least eight state laws that have not been challenged.  The Fourth Circuit’s current line of logic could be extended to enjoin some of these state laws.  However, if on rehearing the Fourth Circuit reverses course and upholds Virginia’s law, these laws will be bolstered by both Gonzales v. Carhart and the Fourth Circuit decision.

In a decision issued last week by the Eighth Circuit (sitting en banc), the Court reversed a preliminary injunction that had blocked the enforcement of certain provisions of South Dakota’s informed consent law.

The provisions require that a woman be informed that “the abortion will terminate the life of a whole, separate, unique, living human being,” and that the woman has an existing, Constitutional relationship with her unborn child.  Planned Parenthood had challenged the law, and initially obtained the now-overturned preliminary injunction from the lower court. 

The effect of this ruling remains to be seen.  Because the decision involved only a preliminary injunction, the actual merits of the case—and the constitutionality of the informed consent provisions—have not been decided.  However, a few positive developments must be noted.

First, the Court concluded that, in a preliminary injunction proceeding involving government action, plaintiffs such as Planned Parenthood must meet a higher standard.  It is not enough that Planned Parenthood show that it might succeed on the merits of the case; it must show that it is likely to succeed.  This heightens the standard that district courts in the Eighth Circuit will use when considering preliminarily enjoining abortion related laws.

Second, this Court more accurately balanced expert witness testimony than it has in the past.  For example, in Carhart v. Gonzales, one of the partial-birth abortion cases, the lower court and Eighth Circuit took abortionist testimony as fact, completely dismissing the accuracy and strength of the government’s expert witnesses.

Here, however, the Court emphasized that Planned Parenthood did not have enough medical and scientific evidence that the informed consent provisions were unnecessary or inaccurate.  The Court did not take as fact a plaintiff abortionist’s own affidavit.  Instead, it balanced the legislative history and multiple expert witnesses testimonies given by the government.  In other words, the Court did not take abortionist testimony as fact, as it has done in the past.

Finally, the Court indicated that the question of when life begins is a scientific, and not necessarily ideological, fact.  It demanded scientific evidence from Planned Parenthood.  And because Planned Parenthood did not produce, it lost at the preliminary injunction stage.

What happens next with this case remains to be seen.  The informed consent provisions are not in the clear yet—the preliminary injunction stage is just one hurdle in the battle of constitutionality.  But at least as the lawsuit proceeds, the provisions will be in effect.

As life-affirming laws in Michigan increase, the abortion rates in Michigan continue to plummet. Michigan state health officials announced last week that the abortion rate in the state have dropped to a record low since record-keeping began in 1979. The current abortion rate shows a 50% drop since the peak in 1987, and a 3.7% drop from 2006. The Michigan Department of Community Health reported that in 1987 there were 350 abortions for every 1,000 live births. In 2007, the number of abortions dropped to 200 abortions for every 1,000 live births.

The drastic drop in the Michigan abortion rate in 2007 is no surprise. Americans United for Life (AUL) ranked Michigan as the #1 pro-life state for 2007. AUL bases its rankings on the number of pro-life laws being enforced in a state, and the breadth of protection provided by each law.

Michigan currently has a number of women’s health and safety laws in effect, including:

• a comprehensive informed consent for abortion statute;
• a statute providing an option for women to view an ultrasound image of the unborn child;
• parental consent statute for abortions performed on minors;
• minimum health and safety requirements for abortion facilities;
• and a prohibition of the use of public funds and school health coverage plans for abortions.

Michigan law also contains provisions that specifically protect the health and safety of the unborn and the newly born. Michigan law defines the killing of an unborn child as a form of homicide, and defines non-fatal assaults on an unborn child as a crime. In addition, Michigan law requires that infants who survive an abortion and are born alive must be given immediate and appropriate care.

In terms of bioethics, Michigan law bans human cloning, for both reproductive and research purposes. Michigan also bans fetal experimentation and non-therapeutic research on a live human embryo, fetus, or neonate. As for end-of-life issues, Michigan treats physician-assisted suicide as a felony.

Lastly, Michigan law protects the rights of conscience of healthcare providers in the abortion context. Under Michigan law, healthcare professionals and healthcare facilities who object on grounds of conscience may not be forced to participate in the performance of an abortion, and may refrain from participation.

It is no coincidence that the abortion rate in Michigan has dropped to its all-time low, and that Michigan has the best pro-life, incremental legislation in place. Research shows that incremental protections are effective means of lowering the number of abortions performed. Michigan is a concrete example of this conclusion. The effectiveness and importance of passing life-affirming, incremental legislation in the states has been made clear enough. For those interested in making abortion rare, Michigan stands out as a model.

To go to National Right to Life’s article elaborating on congruent abortion data click here.

In what appears to be an unprecedented manifestation of judicial activism, the Fourth Circuit on Tuesday struck down Virginia’s partial-birth abortion ban—a ban that is almost identical to the federal ban upheld last year by the United States Supreme Court (USSC) in Gonzales v. Carhart. First, the Court engaged in a circular pattern of logic to conclude that, while both statutes utilize the same definition, the Virginia statute is somehow unconstitutional. Further, while the Virginia statute clearly excludes D&E abortions from its prohibition, the Fourth Circuit found that the statute prohibits all D&E abortions. The Circuit also pandered to abortionists’ claims that a “small fraction” of D&E abortions accidentally result in D&X abortions (or partial birth abortions)—without requiring such claims to be backed up with real medical evidence. In all, the Circuit propagated a decision wrought with anti-life semantics and purpose—a decision that should and will, in all likelihood, result in USSC action.

Two Statutes, One Clear Meaning

In prohibiting “partial birth infanticide,” or “dilation and extraction” (D&X), Virginia’s statute possesses a definition identical to the federal statute’s definition of “substantially expelled or extracted from its mother”: in the case of a headfirst presentation, the infant’s entire head is outside the body of the mother, or, in the case of breech presentation, any part of the infant’s trunk past the navel is outside the body of the mother. This definition was undisputedly upheld by the Court in Gonzales.

Moreover, Virginia’s statute explicitly excludes other forms of late-term abortions from its prohibition, stating particularly that D&X shall not under any circumstances include the dilation and evacuation (D&E) abortion procedure involving dismemberment of the fetus prior to removal from the body of the mother.

Thus, for all intents and purposes, the Virginia statute and the federal statute proscribe the same act.

Yet the Fourth Circuit did not agree. When the Circuit’s opinion is examined, however, it becomes clear that the Circuit engaged in linguistic gerrymandering—it had an already-determined conclusion in mind, and utilized all forms of circular logic in order to support its unabashedly anti-life agenda.

Examples of Linguistic Gerrymandering and Circular Logic

The Fourth Circuit relies heavily on the USSC’s determination in Gonzales that the federal statute “prohibits a doctor from intentionally performing an intact D&E,” but “does not prohibit the [standard] D&E procedures in which the fetus is removed in parts.” The Circuit focuses on the fact that the Virginia statute does not [allegedly] protect abortionists from “accidentally” performing D&E, because the statute does not [again, allegedly] include an “intent” requirement. The Circuit then goes on to make the extraordinary claim that, because any D&E abortion can accidentally result in a D&X abortion, the statute prohibits all D&E abortions.

This is a red herring. As already mentioned, the Virginia ban specifically excludes other late term abortion procedures, including D&E. In fact, the Virginia ban is in essence more protective of physicians than is the federal ban in this enumeration. In no way can the Fourth Circuit declare that the Virginia ban will “chill” the practice of D&E abortions, because on the face of the ban those abortions are excluded from prosecution.

In other words, despite the fact that neither the federal nor the Virginia statutes prohibit D&E abortions, the Fourth Circuit struck Virginia’s statute because it does not do so in the same manner in which the federal statute does. The Fourth Circuit disregards the fact that the end is the same: D&E abortions can still be performed. It instead focuses on the means by which Virginia accomplished this standard. This is not at all what the USSC had in mind.

Another example is the Circuit’s continual reference to the “small fraction” of D&E abortions that result in the head of the unborn child becoming lodged, forcing the abortionist to resort to D&X. This “small fraction” language is used throughout the opinion, but never does the Circuit report that any witness before the trial court could actually provide a percentage or ratio of abortions to support that claim. Without such evidence, the simple claim of one abortionist witness that a “small fraction” of D&E abortions end in D&X is purely hypothetical—and the USSC made clear in Gonzales that such hypothetical claims are not proper in facial challenges.

A third example of the Fourth Circuit’s blatant refusal to abide by USSC precedent is its failure to abide by the customary rules of statutory construction—namely, that a court should do everything in its power to preserve the constitutionality of a statute. Here, the Circuit could have easily “read” into the act an “intent” provision. This would have been particularly easy given the statute’s clear provision that D&E abortions are not prohibited. But instead, the Circuit decided to ignore this possibility and strike the entire statute.

Conclusion

It is significant here that the partial birth abortion statutes of Missouri and Utah were also enjoined pending litigation when the USSC decided Gonzales. However, contrary to the Fourth Circuit, those courts found the states’ prohibitions constitutional, and the prohibitions are now in force. The Fourth Circuit is the only court since Gonzales to hold a partial birth abortion statute unconstitutional.

In light of the clearly constitutional language and the precautions taken by the state of Virginia to exclude other abortion procedures, the Fourth Circuit’s decision on Tuesday is nothing short of judicial activism. Thus, the Circuit’s decision should, and in all likelihood will, result in further action by the United States Supreme Court.

Former Governor Eliot Spitzer has introduced an extreme abortion bill, the Reproductive Health and Privacy Protection Act (RHAPP), into the New York State Legislature. This bill will do anything but make abortions rare and safe in New York. On the contrary, the RHAPP will increase the number of abortions performed in New York and wipe out all existing health and safety abortion regulations. If the RHAPP is enacted, it would make New York the abortion capital of America.  

To read the full article, please visit http://aul.org/NY_RHAPP

As most people are now aware, New York Governor Eliot Spitzer was caught trafficking in prostitution across state lines. This morning’s news reports indicate that he will step down effective Monday.

What does this mean for the Reproductive Health and Personal Privacy Act (RHAPP) – the radical pro-abortion bill currently pending before the New York legislature?

For those unaware of what this bill will do, AUL staff attorney Maggie Datiles will have an excellent summary on the AUL web site later this week. In short, this bill will remove every abortion regulation that exists in the state and prohibit any new ones from being enacted. It is similar to the federal Freedom of Choice Act (FOCA) that’s been under consideration for years.

In the NY bill, any female as young as age 12 will be able to get an abortion from any health care provider for any reason in all nine months of pregnancy. Forget laws requiring the abortionist to be a qualified doctor. Your dermatologist would now qualify. In fact, forget needing to be a doctor at all. And forget laws requiring emergency equipment to be present whenever an abortion is performed. Those things aren’t necessary.

And forget about opting out of performing the procedure. With RHAPP, no doctor, nurse or hospital, regardless of moral views or religious affiliation, can decline to perform abortions. Additionally, any and all employers and insurance companies will be forced to pay for them. And that’s not all. Publicly-funded sex-ed programs must encourage abortion and contraception, and state money would be prohibited from being used for abortion-alternative programs.

However, with Spitzer’s personal shenanigans, one of the bills biggest backers is now toast. The Wall Street Journal is reporting that the state legislature is no longer functioning. “‘Everyone’s on death watch,’ said John McArdle, spokesman for Republican Senate Majority Leader Joseph Bruno. ‘We’re trying not to get caught up in it but it’s brought everything to a standstill.’”

The new governor, David Paterson, is reportedly far more liberal than Spitzer. He is known for his support for embryonic stem cell research, and abortion. He’s also more willing than Spitzer to negotiate across the aisle and with opponents in his own party. This means that we are probably less likely to get the full version of RHAPP but could be more likely to get a stripped down version that will cause havoc and destroy women’s lives anyway.

This article originally appeared in the Fall 2007 issue of Human Life Review. Used by Permission. For a free sample issue of Human Life Review, call 212-685-5210 or visit www.humanlifereview.com.

A Lack of Prudence
by Clarke D. Forsythe
President, Americans United for Life

In June, certain anti-abortion activists bought full-page newspaper ads featuring an “open letter” criticizing James Dobson, founder of Focus on the Family, for his “approval” of the Supreme Court’s April 18 decision in Gonzales v. Carhart, which upheld the constitutionality of the federal Partial- Birth Abortion Ban Act (PBABA) of 2003. The crux of the criticism seems to be that the Gonzales decision was “brutally wicked,” because the Court didn’t prohibit all abortions (or at least D&E abortions). The impact of the “open letter” was multiplied by newspaper reports about the letter in the Washington Post on June 5 and the Los Angeles Times on June 6.

The letter’s criticism of Dobson (and other organizations) for publicly supporting the Court’s decision contained innumerable misstatements, including misunderstandings about the proper role of the Supreme Court, how the Supreme Court operates, why the PBABA was written, the limits of the PBABA, the Court’s abortion doctrine, the records of Justices Scalia and Thomas, the language of the Gonzales opinion, and the future implications of the Court’s decision. Since the “open letter” was published for millions to read, its numerous misstatements deserve a public correction.

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Dear Editor:

I was surprised to read, according to the Globe, (“Shots Assist in Aborting Fetuses – Lethal Injections Offer Legal Shield”, August 10, 2007) that some physicians at three Harvard-affiliated hospitals are lethally injecting unborn children prior to completing abortions. This injection, which according to some doctors cited in the article creates some risk to women, was being done solely to avoid violating the federal Partial-Birth Abortion ban. One doctor was quoted as saying, “No physician even wants to be accused of stumbling into accidentally doing one of these procedures.”

This claim is uninformed. The procedure banned by a bi-partisan Congress and recently upheld by the United States Supreme Court creates no such situation that a physician might “accidentally” break the law.

Under the Partial Birth Abortion Act, a physician is subject to criminal liability only if he “knowingly performs a partial birth abortion” which involves “deliberately and intentionally” vaginally delivering a living fetus. The vaginal delivery is further defined in a specific way depending on the child’s presentation (e.g., breech). When the Supreme Court upheld the ban, it noted the scienter requirements and the “anatomical landmarks” prevented arbitrary enforcement of the ban because it is so clear what conduct the ban prohibits.

The doctor’s statement is misinformed and misleading.

Maureen Bailey
Staff Counsel
Americans United for Life, Chicago