By Dave Andrusko
A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit has reversed a lower-court decision and upheld Ohio House Bill 351.
Ohio abortionist Martin Haskell and his clinic had challenged the state's second attempt at enacting a partial-birth abortion statute not long after the United States Supreme Court's Stenberg v. Carhart decision overturned Nebraska's ban on partial-birth abortion. On September 20, 2001, U.S. District Judge Walter H. Rice agreed with Haskell.
But last month the appeals court panel reversed Rice and upheld Ohio House Bill 351 by a 2-1 margin. Judge James Ryan wrote the majority opinion for himself and Judge Alice Batchelder. His analysis, published December 17, includes a number of passages which caution against routine judicial hostility to legislative initiatives.
For example, Ryan wrote that the state of Ohio has interests which "warrant a measure of deference, rather than the virtual assumption of unconstitutionality that has led federal courts, thus far, to invalidate the efforts of at least 20 states to exercise the limited sovereign authority to regulate abortion and abortion methods." The "substantial state interest" Ryan enumerated is in "potential life throughout pregnancy," mentioned specifically in the 1992 Casey decision which narrowly upheld Roe in a reformulated fashion.
Judge Ryan went on to elaborate. He wrote that before the High Court overturned Nebraska's ban on partial-birth abortion in its 2000 Stenberg v. Carhart decision, it did so only after "acknowledging the legitimate relationship between the interest in protecting fetal life and the more subtle interest motivating the Nebraska legislature's decision to ban partial-birth abortion, that is, showing concern for fetal life; preventing the unnecessary death of fetuses when they are substantially outside the mother's body; maintaining a strong public policy against infanticide; and preventing unnecessary cruelty."
Such stern but measured language has not often marked the judiciary's examination of state statutes attempting to put a stop to what the late Sen. Daniel Patrick Moynihan once described as "too close to infanticide."
Plaintiffs asserted, Ryan wrote, "that this exception [to the Ohio ban] is constitutionally inadequate because, they argue, a valid health exception must give physicians the discretion to use the partial-birth procedure in any and every circumstance in which a particular physician deems the procedure preferable to other readily available and more widely used procedures, such as the dilation and evacuation (D&E) procedure."
To which the panel simply but eloquently responded, "We disagree." In so doing, Ryan rejected the absolutist "health" position - - that all it takes to overturn a ban on any particular abortion technique is for just one abortionist to say this technique is infinitesimally "safer" for women.
"Taken together," he wrote, "Casey and Carhart stand for the proposition that states may restrict an abortion procedure except when the procedure is necessary to prevent a significant health risk."
(The recently enacted federal Partial-Birth Abortion Ban Act does not include a health exception. The Congress concluded that "a partial-birth abortion is never necessary to preserve the health of a woman, poses significant health risks to a woman upon whom the procedure is performed and is outside the standard of medical care." Both federal and state laws dealing with partial-birth abortion all contain exceptions to save a mother's life.)
Ryan shrewdly put his finger on the dangerous claims voiced by plaintiff Haskell and illustrated how some pro-abortionists have a head start on the next step down the slippery slope. "If taken to its next logical step - - not even its logical 'extreme,'" Ryan wrote, "this proposition would prevent states from restricting a procedure in which a fully intact, near-viable infant is delivered alive and then killed, or allowed to expire, completely outside the mother." And this was not idle speculation.
As Ryan reminded his dissenting colleague, "In fact, one of the plaintiffs' experts, Dr. Cassing Hammond, confirmed at trial that he would prefer, if possible, to 'remove the fetus totally intact every time and bring about its demise after it has been delivered.'"
Hammond's testimony illustrated that the issue is no longer about "potential [unborn] life" alone. For the Cassing Hammonds of this world, it is perfectly acceptable to continue the assault on the child who is delivered outside the womb - - alive and intact.
Ryan also addressed the second objection mentioned by Judge Rice when he overturned the Ohio law in 2001: that the law imposes an "undue burden" because it supposedly swept up the commonly used "D&E" abortion technique into its purview.
Ryan explained that the state of Ohio argued that its law draws an "unmistakable distinction between the partial birth procedure and the traditional D&E." Beyond carefully delineating what was barred and what was not, what authority could they turn to to prove the state had actually done so?
Ryan stated that courts have repeatedly explained that the principal distinction between D&E and partial-birth abortion is that, in the latter, the baby is intact. And it was Haskell himself, Judge Ryan wrote, who confirmed that he actually "coined the term 'dilation and extraction' or 'D&X' to distinguish it from dismemberment-type 'D&E.'"
Dissenting Judge Arthur Tarnow had little use for the law. He lit into the legislature - - and his colleagues - - for not providing a "mental health" escape clause, the effect of which would be to open the floodgates.