Mario Diaz

At the beginning of her dissent in the recent Partial Birth Abortion (PBA) case, Gonzalez v. Carhart, Justice Ginsburg, joined by Justices Stevens, Souter and Breyer, called the majority's decision "alarming." Though there is nothing legally alarming about this decision, Justice Ginsburg and other abortion advocates' feelings were deeply hurt by what they consider an intrusion on their rights.

Yes, this decision is an intrusion on the tight grip they've had on abortion jurisprudence in America. In the past, abortionists enjoyed an unprecedented level of respect, security and even admiration that the country's highest Court did not show this time. To them, this is not fair, even if the decision is legally sound. For years they had been the only ones heard on the issue of abortion, but this time the Court had the audacity to listen to both sides. The Dissent cannot believe this and is appalled that the Court would even listen to doctors that do not perform partial birth abortions. Justice Ginsburg quotes the lower court to express her indignation:

[N]one of the six physicians who testified before Congress had ever performed an intact D&E. Several did not provide abortion services at all...

You see, according to Justice Ginsburg and abortion advocates, a doctor should be ignored on this issue if he or she does not provide abortion services. That means that the Court should listen to condemnation of the PBA procedure only if voiced by someone who performs it. Put another way, since no abortion-performing doctor calls the procedure gruesome, then the procedure must not be gruesome. Never mind that hundreds of doctors do not perform the procedure

because it is gruesome. That's not the point. Justice Kennedy, writing for the Majority, addresses this point brilliantly:

The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community (emphasis added).

Mario Diaz

Mario Diaz is the Policy Director for Legal Issues at Concerned Women for America.

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