Our Faith-Based Justiceshttp://www.huffingtonpost.com/geoffrey-r-stone/our-faithbased-justice...tml

In Gonzales v. Carhart, the Supreme Court, in a five-to-four decision,
upheld the constitutionality of a federal law prohibiting so-called
"partial birth abortions" (properly described as "intact dilation and
evacuation" or "intact D & E") despite the absence of an exception to
protect the health of the woman. [...]

Our Faith-Based Justiceshttp://www.huffingtonpost.com/geoffrey-r-stone/ou=

In Gonzales v. Carhart, the Supreme Court, in a five-to-four decision,
upheld the constitutionality of a federal law prohibiting so-called
"partial birth abortions" (properly described as "intact dilation and
evacuation" or "intact D & E") despite the absence of an exception to
protect the health of the woman. Gonzales reversed an earlier
decision, Stenberg v. Carhart, in which the Court had held a virtually
identical state law unconstitutional, primarily because it failed to
include an exception to protect the health of the woman.

In the majority's view, the critical difference was that in enacting
the federal law Congress made several findings to support the
legislation. The majority accepted those findings even though, as
Justice Ginsburg observed in an unusually scathing dissent, those
findings were nothing more than political nonsense.

Among Congress's clearly erroneous "findings" were its assertions that
no medical schools provide instruction on intact D & E, that intact D
& E is never necessary to safeguard the health of the woman, and that
intact D & E is less safe than alternative procedures. Each of these
"findings" was and is false. In fact, many medical schools, including
Chicago, Northwestern, Yale, Columbia, teach intact D & E; there is a
clear medical consensus that in particular circumstances intact D & E
is necessary to protect the heath of the woman; and there is a clear
medical consensus that in particular circumstances intact D & E is
safer than the alternative procedures.

It is not unusual for the Supreme Court to give deference even to
implausible legislative findings. But the findings must at least be
rational and, when a law restricts a fundamental constitutional right,
the findings must be almost unimpeachable. In this instance, every
federal court that reviewed these congressional findings rightly
described them unreasonable, unbalanced, polemical, and unsupported by
the facts.

The five justices in the majority in Gonzales have put at risk the
health of women who suffer from heart disease, uterine scarring,
bleeding disorders, compromised immune systems, and certain
pregnancy-related conditions, such as placenta previa and accreta, as
well as those women carrying fetuses with certain abnormalities, such
as severe hydocephalus. In all of these circumstances, and many
others, the use of the intact D & E is necessary to ensure the health
of the woman.

It is important to note that the prohibition of intact D & E has
nothing to do with preserving the life of a fetus. The "partial birth
abortion" law does not prohibit any abortions. Rather, it prohibits
only a particular means of performing abortions. If the woman is
willing to undergo a greater than necessary risk to her health, she
may terminate her pregnancy by other, less safe, methods. She may, for
example, have the fetus terminated by injection prior to extraction,
or removed by cesarean, or extracted by non-intact D & E (which
involves dismembering the fetus in utero).

What, then, explains this decision? Here is a painfully awkward
observation: All five justices in the majority in Gonzales are
Catholic. The four justices who are either Protestant or Jewish all
voted in accord with settled precedent. It is mortifying to have to
point this out. But it is too obvious, and too telling, to ignore.
Ultimately, the five justices in the majority all fell back on a
common argument to justify their position. There is, they say, a
compelling moral reason for the result in Gonzales. Because the intact
D & E seems to resemble infanticide it is "immoral" and may be
prohibited even without a clear statutory exception to protect the
health of the woman.

By making this judgment, these justices have failed to respect the
fundamental difference between religious belief and morality. To be
sure, this can be an elusive distinction, but in a society that values
the separation of church and state, it is fundamental. The moral
status of a fetus is a profoundly difficult and rationally
unresolvable question. As the Supreme Court has recognized for more
than thirty years, when the fundamental right of a woman "to determine
her life's course" is at stake, it is not for the state -- or for the
justices of the Supreme Court -- to resolve that question, and it is
certainly not appropriate for the state or the justices to resolve it
on the basis of one's personal religious faith.

In 1972-73, I had the privilege of serving as a law clerk to Justice
William Brennan, then the Court's only Catholic justice. It was in
that year the Court decided Roe v. Wade. Justice Brennan struggled in
that case, as he struggled in earlier cases involving such issues as
school prayers, to separate his personal religious views from his
views as a justice. He joined the decision in Roe because he believed
in the separation of church and state and because he was convinced
that his religious views must be irrelevant to his responsibilities as
a justice.

As the Court observed fifteen years ago, "Some of us as individuals
find abortion offensive to our most basic principles of morality, but
than cannot control our decision. Our obligation is to define the
liberty of all, not to mandate our own moral code." It is sad that
Justices Roberts, Scalia, Kennedy, Thomas and Alito have chosen not to
follow this example.

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You are invited to check out the following:

The Rise of the Theocratic States of Americahttp://members.tripod.com/~ca=

American Theocrats - Past and Presenthttp://members.tripod.com/~candst/th=

The Constitutional Principle: Separation of Church and Statehttp://member=

[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]

HRSepCnS =B7 Historical Reality SepChurch&Statehttp://groups.yahoo.com/gr=

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. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why =

page of history is worth a volume of logic." New York Trust Co. v. Eisne=

256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
. . .
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USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote

"You pilot always into an unknown future;
facts are your only clue. Get the facts!"

That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.

It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.

*****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE

http://members.tripod.com/~candst/index.html
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