Strengthening Constitutional Self-Government

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Accidental Childbirth

It is late here in Iraq, and while I was trying to send an email, I noted that Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California issued a permanent injunction against the federal partial birth abortion statute. The judge does much early in the opinion to suggest that partial birth abortion, also known as intact dialation and extraction ("intact D&E") is relatively commonly used. To support that conclusion, she points to expert testimony stating that when trying to perform an ordinary D&E (wherein the woman is partially dilated, following which the doctor grasps the fetus with forceps, and disarticulates or dismembers the fetus in the course of removing it in several passes), doctors sometimes dialate the woman to the point where intact D&E can occur. To quote the order:

Several physicians report that occasionally while performing a D&E, they encounter a situation where they believe it will be possible to remove the fetus intact or largely intact. This occurs when the woman’s cervix is dilated to such a degree that the fetus can be extracted up to the head, in either one or two "passes" with the forceps. . . . The number of times this occurs varied by doctor, but ranged between 5% to 33% of all D&Es performed, with most doctors reporting occurrences of around 5-15% of the time.

It is at this point that Judge Hamilton drops a pregnant footnote to support this statistic in spite of seemingly contradictory evidence:

Dr. Sheehan and Dr. Creinin reported that an intact D&E occurred less than 1% of the time, but they were reporting incidents where where the entire fetus, including the head, was removed intact.

(emphasis added). Given the late term procedures at issue, I believe that what the Judge is inartfully describing is induced childbirth. Because the Judge had already stated that these doctors generally do not administer lethal chemical agents such as digoxin prior to performing the D&E procedure, this "accident" may well be live induced childbirth. This testimony sounds remarkably similar to that of Dr. Cassing Hammond, who served as an expert to the abortion doctors challenging the Ohio partial birth abortion statute in Women’s Medical Professional Corp. v. Taft. Dr. Hammond testified that he would prefer, if possible, to “remove the fetus totally intact every time and bring about its demise after it had been delivered.”

While the district court’s permanent injunction is broad-- prohibiting the federal government from enforcing the statute against Planned Parenthood or essentially anyone who does business with Planned Parenthood--it obviously does not apply to state laws on the topic, particularly where, as in Ohio, the state’s partial birth abortion statute has been upheld by a federal court of appeals.

Discussions - 4 Comments

Dr. Hammond testified that he would prefer, if possible, to “remove the fetus totally intact every time and bring about its demise after it had been delivered.”

I’m very confused. How would this not fall under the homicide laws?

How can a district court issue an injuction for the entire federal government? Doesn’t it just apply to its district? and to the circuit, if the circuit court upholds? and then only to the entire government if the Supreme Court affirms?

In answer to Mr. Schuler: full delivery should be covered by homicide laws, and if not then it would be covered by the recently enacted Infant Born Alive Act, which was designed to shore up loopholes in state statutes which had been construed not to apply to killing infants born during botched abortions. Of course, Dr. Hammond made no admission: he testified that he would prefer to perform the procedure this way, but you will note that in this quote he is careful not to say that this is how he does the procedure. However, it is equally worth noting that the partial birth procedure came to public attention after a nurse for another doctor in Ohio who was in the forefront of the procedure came forward after she witnessed procedures in which full delivery was accomplished before termination. When the procedure is performed in the breech position, all but the cap of the skull will often exit the cervical opening. Given the level of dilation and the statements of the Ohio doctor’s surgical nurse about what she witnessed, there are instances where even the cap of the skull does not remain in the cervical opening. The difficulty in detecting a termination committed after complete delivery points to a serious evidentiary problem, which in most cases may only be cured by an assistant, such as a nurse, acting as a witness.

In response to Rob Driscoll: this is an excellent question. Generally, a district court cannot bind the federal government except in the particular district in which it sits. Every Justice Department that I can think of has applied the theory of non-acquiescence--that is, they do not abide by court decisions which strike down federal laws or policy outside of the jurisdictional limits of the decision. In this case, that would suggest that the decision would be limited to the Northern District of California. To get around this limitation, the Judge has issued an injunction directing the government not to interfere with the moving parties, which includes Planned Parenthood of America. But then she extends the ruling, stating that it applies to PP Contractors, "and those persons in active concert or participation with those persons listed above." Because many (perhaps most) abortion providers contract with, or could be construed to be "in active concert with" Planned Parenthood, the resulting scope of the injunction could be extraordinarily broad. While I can recall party specific injunctions, I cannot recall ever having seen an injunction that applied to business associates of parties in interest. As if to minimize what appears to be an overreach, the Judge drops a footnote suggesting that she has declined to issue a nationwide injunction--an empty gesture given the fact that she has attempted this very end by the "associates of the party in interest" injunction.

And, we call ourselves a "civilized" society? And, this is "progress" and "freedom" for women? It is an abomination and perversion of each of those ideals at its worst.

I’m glad that Mr. Alt mentioned the homocide laws because I wonder then if it is homocide, is it homocide an hour before that, a day before, what about a week, a month, or going back to conception? Clearly, it is. If it is a human life at that point, it is at conception. Humans don’t bear ducks or rabbits, but beautiful little babies, born out of a beautiful act (sometimes perverted such as rape) between a husband and wife, or at the very least a man and a woman.

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