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Policy Communiqué

Infanticide Upheld By Courts Rulings

 Joel P. Rutkowski, Ph.D., President 
The American Voice Institute Of Public Policy  


Court Rulings 
Comments from Judges
Partial-Birth Abortion Facts 
Courts Ruling Medically Unsound 
Roe v. Wade
Human Life Has Infinite Value
Personal Conviction Overshadows Life
End Notes

Court Rulings 

On January 31, 2006, since the 2003 law fails to make an exception for the health of the mother, two appeals courts ruled that the federal ban on partial–birth abortion is unconstitutional.   

To pro-life advocates, the ruling from the Second Circuit Court of Appeals in New York and the Ninth Circuit Court in San Francisco were setbacks.  However, the decision could be appealed to the United States (US) Supreme Court. 

The law was unanimously rejected by the San Francisco appeals court 3-0 and an injunction was issued halting its enforcement. On the other hand, asking to hear more legal arguments, the New York court declined to issue an injunction and voted 2– 1 against the law.  Both sides were given 30 days to offer recommendations on how to remedy the failings in the law by the New York Appeals Court.  (1) 

Since it lacks an exception for the health of mothers, imposes an undue burden on a woman's right to seek an abortion before a fetus is viable, and is vague, “depriving physicians of fair notice of what it prohibits encouraging arbitrary enforcement,” the Ninth Circuit Court in San Francisco held the law banning late-term abortion as unconstitutional. (2) 

In light of the US Supreme Court's recent decision in Ayottee v. Planned Parenthood of Northern New England, the San Francisco panel said it concluded that the “only appropriate remedy is to enjoin enforcement of the act and we now affirm the district court's grant of a permanent injunction.”(3) 

The U.S. Supreme Court ruled in the Ayottee case that New Hampshire should revisit its law requiring minors seeking abortions to notify their parents because the law failed to include an exception for threatening health emergencies requiring abortions.   

Also, agreeing with a lower court ruling “ that the lack of a healthy exception renders the act unconstitutional,“ was the New York panel. (4) 

However, on Ayottee, the same conclusion was not reached by the New York court which said the Supreme Court only reaffirmed that any law restricting abortion had to require an exception for the mother's health and that the issue of whether to remedy the New Hampshire law must be dealt with separately. 

It is unfortunate that the rulings in San Fransisco and New York were not based on a federal case but on a single state decision.  The Ayottee case was limited to a state law that applied only to minors.  Whereas the federal Partial-Birth Abortion Ban Act would apply to any woman in the nation who undergoes the procedure.  

A 2004 ruling by a judge who upheld the right to perform the procedure even as he described it as “gruesome, brutal, barbaric and uncivilized, “ affirmed the New York decision. (5) 

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Comments from Judges 

Chester J. Straub was one of the judges that dissented. Being an unusually sharp dissent, Judge Straub said he believed Congress' determination that the procedure was never medically necessary to protect a woman's health was well founded and supported by a lower court ruling.  “Allowing a physician to destroy a child as long as one toe remains within the mother would place society on the path towards infanticide. I find the current expansion of the right to termination a pregnancy to cover a child in the process of being born morally, ethically and legally unacceptable.“ (6) 

Also, Judge Straub wrote that he does not believe a woman's right to end her pregnancy under Roe v. Wade “extends to the destruction of a child that is substantially outside her body.” (7) 

John M. Walker Jr., the Second Circuit Chief Judge, wrote in a concurring opinion that precedent forced him to rule against the act “no matter how personally distasteful the fulfillment of that duty may be.”  The abortion method in the ban was one that “many Americans, probably most Americans, find exceedingly offensive on moral grounds,“ he found. (8) 

The law was vague and so broad that no other remedy was possible except to throw it out said the California court. 

Circuit Judge Stephen Reinhardt wrote, “We are reluctant to invalidate an entire statute. However, after considering all of the obstacles to our devising a narrower remedy, we conclude that such is our obligation.“ (9) 

Also, arguments made by the Justice Department that there was general agreement among doctors that such late-term abortions were never necessary to preserve the health of a woman were rejected by the panel.  The panel concluded, “The government all but admits in its reply brief that no medical consensus regarding the need for the prohibited procedures to preserve the health of women in certain circumstances.“ (10) 

Additionally, the procedure is inhumane and causes pain to the fetus said Justice Department attorneys. It “blurs the line of abortion and infanticide,“a government attorney argued. (11)

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Partial-Birth Abortion Facts 

The partial-birth abortion procedure partially removes from the womb the baby and punctures or crushes the skull. It is generally performed in the second trimester. 

Seen by abortion activists as a fundamental departure from the Supreme Court's 1973 Roe v. Wade was the ban former President Bill Clinton vetoed twice. 

In 2003, President Bush signed the abortion ban into law. However, as a result of legal challenges in several states it was not enforced.  Also, in Nebraska, the ban had been ruled unconstitutional by a federal judge. In July 2005, the Eighth U.S. Circuit Court of Appeals in Saint Louis upheld the Nebraska ruling that has been appealed to the US Supreme Court. Yet  to act is the High Court.  And, as a result of court challenges the Federal Partial-Birth Abortion Ban Act has never taken effect. 

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Courts Ruling Medically Unsound 

The Ninth Circuit Court's rejection of arguments made by the Justice Department that there was general agreement among doctors that such late-term abortions were never necessary to preserve the health of a woman was medically unsound.

The procedure medically known as “intact dilation and extraction,” or D&X is commonly referred to as partial-birth abortion.  In 1995, during a Congressional debate on a bill banning intact D&X, the procedure came to the forefront of public awareness.

To evaluate or attest to its safety there exist no credible studies on intact D&X. (12)  In fact, serious medical risks to the mother are posed by the intact D&X.  Yet in the editorial page of the New York Times, the Times wrote that it considers the ban on partial birth abortion or infanticide as an assault on women's health and privacy.  (13)  At risk are patients who undergo an intact D & X.  Potential danger is associated with any surgical mid-trimester termination, include hemorrhage, infection, and uterine perforation.  These patients, however, are placed at increased risk of two additional complications by intact D&X.  First, the risk of uterine rupture may be increased.  An internal podalic inversion is an integral part of the D&X procedure, during which the physician instrumentally reaches into the uterus, grasps the fetus' feet, and pulls the feet down into the cervix thus converting the lie to a footling breech.  Risk of uterine rupture, abruption, amniotic fluid embolus, and trauma to the uterus are carried with the internal version.  “There are very few if any, indications for internal podalic version other than for delivery of a second twin,” indicates Williams Obstertrics. (14)

Second, the risk of iatrogenic laceration and secondary hemorrhage is a potential complication of intact D&X. (15)  Scissors are forced into the base of the fetal skull while it is lodged in the birth canal following internal version and partial breech extraction.  Maternal injury from laceration of the uterus or cervix by the scissors could result in severe bleeding and the threat of shock or even mortal death due to this blind procedure. 

Furthermore, since other procedures are available to physicians who deem it necessary to perform an abortion late in pregnancy, many of these risks are medically unnecessary.  Intact D&X is never the only procedure available according to the clearly stated policy of the American College of Obstetricians and Gynecologists (ACOG).  Furthermore, there does not appear to be any identified situation in which intact D&X is the only appropriate procedure to induce abortion.  In fact, ethical concerns have been raised about intact D&X, according to the scientific literature. (16)

When hydrocephalus is present some clinicians have considered intact D&X necessary.  However, by first draining the excess fluid from the fetal skull through ultrasound guided cephalocentesis, a hydrocephalic fetus could be terminated.

Early in the second trimester the centers necessary for pain perception develop.  On periviable fetuses the majority of intact D&X procedure are performed.  Pain management is an important part of the care rendered to them in the intensive care nursery when infants of similar gestational ages are delivered.  Pain management however, is not provided for the fetus, who is literally within inches of being delivered with intact D&X.   Certainly excruciatingly painful is the forcible incising of the cranium with scissors and then suctioning out the intracranial contents.  Federal standards for the humane care of animals used in medical research would not be met for pain management practiced for intact D&X on a human fetus.  Thus, as a means of pregnancy termination, the needlessly inhumane treatment of periviable fetuses argues against intact D&X.

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Roe v. Wade  

In what can only be described as tragic, more than 30 years after the Supreme Court issued its infamous 1973 Roe V. Wade decision legalizing the murder of the unborn, the US likely experienced legally 47 million abortions at some point in 2005.  (17) 

In nearly all states until 1973, abortion was illegal in the United States except perhaps to save the life of the mother. (18) 

However effectively striking down all anti-abortion statues as unconstitutional was the landmark U.S. Supreme Court decision in, Roe v. Wade.  As a result of the “life, liberty and property “clause in the Fourteenth Amendment, the Court reasoned that a pregnant woman was guaranteed the privacy right to determine whether or not to terminate a pregnancy.   

The state of Texas in that case argued that the Fourteenth Amendment guarantee that no state shall deprive any person of life, liberty, or property without due process of the law also protects the right to life of the unborn child. (19)  However, the term “person” as used in the Fourteenth Amendment was not intended by its authors to include unborn children according to the Supreme Court. 

The state may have some legitimate interest in regulating abortion after the first trimester of pregnancy for health and safety reasons conceded that court. Such restrictions however could only be for the purpose of health and safety, such as requiring that abortions take place in hospitals, by licensed physicians and under strike conditions.  Also, the court ruled that after the six months of pregnancy or the second trimester the state may have a legitimate interest in protecting “ potential life, “ and may therefore restrict abortions in the third trimester of pregnancy except where abortion is necessary to preserve the mothers life or health.  This is why Judge Chester J. Straub is correct when he wrote that he does not believe a woman's right to end her pregnancy under Roe v. Wade “extends to the destruction of a child that is substantially outside her body.” (20)  The Ninth Circuit Court in San Francisco wrongly linked Ayottee v. Planned Parenthood of Northern New England to the federal ban on partial-birth abortion because the Federal partial-birth abortion ban applies to all women and not to just minors.  And as the New York court ruled must be dealt with separately. Furthermore,  since other procedures are available to physicians who deem it necessarily to perform an abortion late in pregnancy, many of these risks are medically unnecessary. 

The fact that the Fourteenth Amendment was passed and ratified during the same period of time (1868) when most of the nation's antiabortion statutes were passed is ignored in the Court's conclusion that the authors of the Fourteenth Amendment did not mean to include unborn children in the term “person.”  Furthermore, the argument  these statutes were passed primarily to protect the mother from dangerous surgery by abortion activists is utterly wrong.  Dangerous in that time were all surgeries yet to prevent appendectomies there were no laws.  And for abortion the term used was “foeticide,” the Latin term for killing (cedo) and unborn child (fetus) was used in the  Iowa statute, and probably others as well.  (21) 

If one does accept the Supreme Court's conclusion that “person” in the Fourteenth Amendment does not include unborn children that does not mean in protecting their right to life the state has no compelling interest.  Under the Fourteenth Amendment animals are not “persons but to prevent cruelty to animals there are laws to protect them.   

Tragically, physicians such as abortionists have politicized their medical decisions instead of basing them on medically sound science.  As a result even though there is not a division of medical opinion regarding the relative safety of intact D&X abortions when compared to other available methods, attorneys can find a physician that will say the contrary.  For example, there does not appear to be any identified situation in which intact D&X is the only appropriate procedure to induce abortion, indicates the scientific literature.  In fact, it is a needlessly risky, inhumane, and ethically unacceptable medical abortion procedure that should not be performed. Tragically, the procedure is simply infanticide. 

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Human Life Has Infinite Value 

According to the Bible, each individual human being has infinite value based on his creation in God's image not on his usefulness to society or even on his usefulness to the Kingdom of God. 

So God created man in his own image, in the image of God he created him; male and female he created them (Genesis 1: 27; King James Version) 

Also, in Psalms the psalmist said, 

For thou hast made him a little lower than the angels, and hast crowned him with glory and honor. (Psalms 8:5; King James Version) 

This Biblical worldview is contrary to the secular worldview of many Americans today that support euthanasia and abortion.  However, in their mindset for the common good, an individual human being may be sacrificed.  For example, an unwanted child because their birth would be inconvenient, expensive, or otherwise undesirable is aborted.  

God places a very severe penalty upon the willful taking of human life as a result of the  infinite value He places upon each individual human being. 

Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man. (Genesis 9:6; King James Version) 

For example God has ordained capital punishment for those who wrongfully destroy human life.  God confers by implication a right to life by these commands of God.  The right to live is conveyed by implication in (Exodus 20:13) by his command, Thou shall not murder (kill).  Civil government has been given the responsibility of protecting human life by God and therefore should do so. 

An interesting point for the reader to ponder is that the term “person” as used in the Fourteenth Amendment was not intended by its authors to include unborn children ruled the Supreme Court.   However, if one reviews the Dread Scott decision of 1857 and the Antelope decision of 1828 they will find an interesting parallel between Roe v. Wade. (22)  As defined by the Fifth Amendment in the Dread Scott decision and in the Antelope decision these cases concluded that blacks were not “persons. “ (23)  However, this did not mean that blacks could be murdered legally, and an individual who murdered a black could not be tried as a murder. Therefore, with the right to life personhood is not to be equated and thus Roe v. Wade is unconstitutional as is the two appeals court ruling against the Federal ban on partial – birth abortion. And once again Judges are not interpreting the constitution but rewriting it to advance their own social agenda for this nation.

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Personal Conviction Overshadows Life  

So often politicians and average Americans will say God bless America.  However, how can this nation be blessed by God when it has legally murdered 47 million unborn  babies through abortion.  One can only wonder that if these babies were allowed to live what they could have accomplished as adults―future leaders, scientists, doctors, teachers, etc. Yet liberal Democrats and pro-abortion Republicans continue to fight for abortion on demand, tooth and nail.  These same individuals would lead America to believe that if this country allows illegal aliens to become guest-workers that this action would remedy the coming Social Security crisis facing retiring baby boomers. However, if they thought more about life than about personal convenience these unborn babies that have been aborted were allowed to live no such crisis would exist.  Furthermore, Americans more often than not cherish animal life above human life. For example, to conceal millions of dollars of heroin on commercial flights into New York for distribution on the US East Coast, investigators believe a Colombian–based heroin trafficking ring used puppies, as well as human couriers, who swallowed the drugs. (24)  Colombia's national police said the puppies with the bags of liquid heroin surgically sewn in their abdomens, were shipped to drug traffickers posing as dog trainers wanting Labrador and Rottweiler purebreds for dog shows.  On CNN, Wolf Blitzer's The Situation Room, on February 2, 2006, the lead story was how across America rage was growing over how these puppies were abused and used in drug trafficking. Yet one can only wonder why this same rage for animals is not expressed for the murder of unborn children.  

As a nation it is time to once again turn back from its wicked and evil ways and heed the warnings the Bible gives in Proverbs 15:34: (King James Version) 

34 Righteousness exalteth a nation: but sin is reproach to any people. (King James Version) 

And, as I Peter 5:6 (King James Version) says, the people of this nation must: 

6  Humble yourselves therefore under the mighty hand of God, that he may exalt (raise you up) you in due time. 

For if the people of this nation continues to treat unborn babies as a biological waste to be discarded as garbage, only time will tell what God's wrath has in store for this nation. 

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End Notes 

  1. Preston, Julia. “Partial Birth Abortion Act Ruled Unconstitutional by U.S. Courts. “ The New York Times.  [Retrieved February 1, 2006].
  2. “Courts reject ban on partial– birth abortion.” Reuters. [Retrieved January 31, 2006.
  3. Ibid.
  4. Ibid.
  5. “Courts uphold challenge to abortion limit.”  The Associated Press.  [Retrieved January 31, 2006.
  6. Ibid.
  7. Preston, Julia. “Partial Birth Abortion Act Ruled Unconstitutional by U.S. Courts. “ The New York Times.  [Retrieved February 1, 2006].
  8. Ibid.
  9. Ibid.
  10. Ibid.
  11. Ibid.
  12. Kaufman, Marc. “Ban on Type of Abortion Reversed. ‘Partial Birth' Law Faces Challenges.” The Washington Post.  [Retrieved June 2, 2004].
  13. Preston, Julia .“U.S. Court in New York Rejects Partial-Birth Abortion Ban.” The New York Times, [Retrieved August 27, 2004].
  14. Sprang, M. LeRoy MD; Neerhof, G. ,Mark DO. 1998.  Rational For Banning Abortions Late in Pregnancy. The Journal of the American Medical Association. Vol. 280 pp. 744-747.
  15. “Round One for Women's Health.” The New York Times. [Retrieved September 13, 2004].
  16. Cunningham FG, MacDonald PC, Gant NF, et al. Williams Obstetrics. 20th ed. Stamford, Connecticut : Appleton and Lange. 1997: 507.
  17. Foust, Michael. “ Tragic: U.S. passed  47 million mark for abortions in 2005. " Baptist Press. [Retrieved January 20, 2006].
  18. Eidsmoe, John. God & Caesar. Christian Faith & Political Action. Crossway Books. Westchester, Illinois. 1984.
  19. Ibid.
  20. Preston, Julia. “Partial Birth Abortion Act Ruled Unconstitutional by U.S. Courts. “ The New York Times.  [Retrieved February 1, 2006].
  21. Eidsmoe, John. God & Caesar. Christian Faith & Political Action. Crossway Books. Westchester, Illinois. 1984.
  22. Ibid.
  23. Ibid.
  24. Goodman, Joshua. “Colombian traffickers stitch heroin into puppies.” The Associated Press. [Retrieved February 2, 2006].

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