Barbaric abortion procedure outlawed

The London Free Press
By Rory Leishman

In a landmark, five-to-four ruling in Gonzalez v. Carhart on April 18, the United States Supreme Court upheld the Partial Birth Abortion Ban Act which the Congress enacted and President George W. Bush signed into law in 2003.

In reasons for the majority in Carhart, Mr. Justice Anthony Kennedydescribed partial-birth abortion (also known as intact dilation and evacuation) as a procedure in which an abortion doctor typically delivers all but the head of a living baby from the womb, before piercing or crushing the baby’s skull so the head can pass through the cervix.

Kennedy agreed with the finding of the United States Congress that: “Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life." On this basis, he upheld the Partial-BirthAbortion Ban Act, which makes it is a criminal offence punishable by up to two years imprisonment for an abortion doctor to perform a partial-birth abortion, unless the procedure is “necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury.”

The Parliament of Canada should take note: Thanks to the calamitous judgment of the Supreme Court of Canada in R. v. Morgentaler, 1988, Canada is the only democracy in the world that has no law governing abortion. If a mother decides, for whatever reason, that she no longer wants her pre-born baby, it is lawful in Canada for an unscrupulous abortion doctor to kill that baby at any time during the pregnancy right up to just a few seconds before birth.

Granted, late-term abortions are very rare in Canada. But so is infanticide. It makes no sense for the Criminal Code to condemn the deliberate killing of a newborn infant, while doing nothing to curtail late-term abortions.

Carhart represents a small step back from the 1973 ruling of the United States Supreme Court in Roe v. Wade that initiated abortion on demand. In a torturous attempt to justify this ruling, the majority of the Court in Roe argued that women have a right to abortion by virtue of the “right to privacy” contained in “penumbras formed by emanations” of the due process clause of the Fourteenth Amendment to the United States Constitution.

Justices Antonin Scalia and Clarence Thomas have repudiated Roe. In a concurring opinion in Carhart, they reiterated their view “that the Court's abortion jurisprudence, including Roe v. Wade, has no basis in the Constitution.”

In a future case that deals directly with Roe, Chief Justice John Roberts and Mr. Justice Samuel Alito, Jr. -– both recent appointees of PresidentBush – are likely also to agree that Roe was wrongly decided, because there is nothing in the plain language or the history of Fourteenth Amendment to the United States Constitution that prohibits the legislatures of the statesfrom constricting abortion.

Correspondingly, there is nothing in the plain language or the history of the Canadian Charter of Rights and Freedoms that authorized the Supreme Court of Canada to strike down Canada’s abortion law. In a dissenting opinion in Morgentaler, Mr. Justice William McIntyre persuasively argued that it is not for the courts, but “for Parliament to pronounce on, and to direct, social policy.”McIntyre explained: “This is not because Parliament can claim all wisdom and knowledge but simply because Parliament is elected for that purpose in a free democracy and, in addition, has the facilities -- the exposure to public opinion and information -- as well as the political power to makeeffective its decisions.”

In Morgentaler, McIntyre exercised judicial restraint: He fulfilled his duty as a judge to uphold the law and the Constitution, while leaving legislating to legislators.

Alas, there is today no judge on the Supreme Court of Canada who can be counted upon to uphold the separation of legislative and judicial powers. While our judicial rulers profess to be enlightened and compassionate, none shows any disposition to agree with judgment of the United States Supreme Court on the urgent need to curtail at least the horrors of partial-birth abortion.

What a shame.