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The Courts and the Culture War, III

By Virginia Armstrong, Ph.D., National Chairman

"Yesterday we suffered from crimes; today we suffer from laws." So wrote Tacitus, the great Roman historian of the First and Second Centuries, A.D. The same lament can be uttered for America today, where we suffer from the edicts of Humanistic judges, whose runaway rulings have eroded our Constitution and our culture.

In our Briefings and Commentaries of 1/30/07 and 2/26/07, we asserted that judicial nominees must be thoroughly questioned concerning their basic philosophies and constitutional philosophies. And we offered specific questions to be asked of would-be judges. Those questions involve the judges’ worldview values and are extracted from worldview positions already clearly expressed by judges and their off-the-court allies.

For this and other reasons, it is essential that we Constitutionalists (advocates of the Judeo-Christian worldview) understand the views and values which give rise to judges’ worldview positions. In our Briefing and Commentary of 3/30/07, we began this exploration of "The Courts and the Culture War" by offering an overview of "worldviews and Law," the law-related components of a worldview, and their interrelationships. At that time, we introduced a diagram which visually reveals the law related ingredients of a worldview.

This diagram shows that from the theological/religious/ philosophical foundations of a worldview arise our legal philosophy/theory ("jurisprudence") and our political philosophy. It is our nation’s jurisprudence (Level #2B) at which we look today. Level #2B is where our religious/theological values and our constitutional/legal values intersect. Judges have seized the power to declare and define our jurisprudence (a generally invisible process). But this invisible judicial philosophizing is the nefarious force producing the courts’ highly visible attacks on marriage, the sanctity of human life, public acknowledgements of God, etc.

The responsibility for repelling this judicial assault on our God and our Constitution falls squarely on US. The Constitution still begins with the words, "We, the people." Most important, God still holds His people accountable to be the "watchmen on the walls" of America. We, the people, must understand our enemy — the evil jurisprudence with which Humanistic judges are battering our Constitution and our culture. Knowledge is key to empowerment, and empowerment is key to our victory in the Culture War.

There are six Essential Elements in a complete body of jurisprudence. The last three of these Elements we will discuss in a later Briefing and Commentary. The first three of these Elements, and the opposing Judeo-Christian ("Constitutionalist") and Humanistic ("Reconstructionist") positions on these issues, we address now.

THE NATURE OF LAW — what is/are the quality(ies) that make a rule a real "law"?

Judeo-Christian theory begins with the premise that the very concept of "law" is rooted in the character of the infinite, personal, sovereign, triune God, and expresses His character.

Illustration: Noah Webster’s 1828 Dictionary defined law by declaring that "Laws are imperative or mandatory, commanding what shall be done; prohibitory, restraining from what is to be forborne; or permissive, declaring what may be done without incurring a penalty." One of these three qualities must characterize a rule or norm in order for it to be genuine "law."

God’s Will can also be understood as "commanding," "prohibiting," and "permitting." America’s view of the nature of law thus corresponds to the nature of God’s Will.

Humanism argues that law is a totally human creation, and that the only "law" of any significance is "positive" or "civil" (i.e., "human") law.

Illustration: The U. S. Supreme Court rendered a decision which met none of the Webster conditions to be a "law" in McCreary County v. ACLU of Kentucky. The Court ruled that a poster listing the Ten Commandments was a "law establishing a religion." But the poster was not a "law" within the meaning of the First Amendment’s prohibitions and therefore and could not violate the Establishment Clause, which applies only to "laws."

THE SOURCE(S) OF LAW — where does law originate?

Judeo-Christian jurisprudence asserts that God, as the Supreme Ruler of the universe, has created a body of Higher Law and authorized human governments to enact civil laws which embody His Higher Law. God permits man to make anti-godly laws, but man will suffer the consequences of these enactments.

Illustration: This view is reflected in the categories of law developed by Sir William Blackstone, the Eighteenth Century legal scholar grounded in the solid Judeo-Christian foundation. Blackstonian jurisprudence was foundational to American jurisprudence until well into the Twentieth Century. One of Blackstone’s categories that applies in America is as follows:

"Municipal law [is] a rule of civil conduct prescribed by the supreme power in a state (civil/human law in America) commanding what is right and prohibiting what is wrong. But no human authority can act without limits [i.e., outside the limits of the law of nature and the law of revelation]." The source(s) of law are human authority acting within the limits of God’s Higher Law.

Humanism argues that law is the product of evolutionary processes in which human authorities, especially judges, are the primary creators of law.

Illustration: Reconstructionist jurisprudence was blatant in Federal District Judge Myron Thompson’s assertion that "it is from the people, and not God, that government derives its powers" (Glassroth v. Moore).

THE NATURE AND KNOWLEDGE OF LEGAL STANDARDS — are they absolute, and where are they found?

Judeo-Christian thought insists that God’s Higher Law manifests absolute truth and absolute standards of right and wrong. These are expressed imperfectly in nature and most perfectly in Scripture.

Illustration: Of Blackstone’s six categories of law, four are directly authored by God and are absolute and immutable. They are revealed in both nature and the hearts of men and, most perfectly and completely, in the Bible. God expects man to use his reason as a tool to discover these rules. A fifth law (the "Law of nations") includes humanly-authored rules. The sixth type is the "municipal law" described above.

Humanism contends that legal norms and their meanings are relative and evolve through time as a result of human experience and/or reason (especially that of judges).

Illustration: Reconstructionist jurisprudence is blatantly obvious in the assertion of eminent law professor Ronald Dworkin that "[judges] should work out principles of legality, fairness, and the rest and revise these principles from time to time in the light of what seems to the Court fresh moral insight . . . " Judges create law and change it as they will.

Will America tomorrow continue to suffer from the laws imposed on us by Humanistic judges and their off-the-bench allies? How well we empower ourselves with worldview knowledge today will have a profound impact on the answer to that question tomorrow.

October Term 2006 Syllabus

(Bench Opinion) OCTOBER TERM, 2006 1


Syllabus


NOTE: Where it is feasible, a syllabus (head note) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter 0 Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


SUPREME COURT OF THE UNITED STATES


Syllabus

GONZALES, ATTORNEY GENERAL v. CARHART ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 05-380. Argued November 8, 2006-Decided April 18, 2007*

Following this Court’s Stenberg v. Carhart, 530 U. S. 914, decision that Nebraska’s "partial birth abortion" statute violated the Federal Constitution, as interpreted in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, and Roe v. Wade, 410 U. S. 113, Congress passed the Partial. Birth Abortion Ban Act of 2003 (Act) to proscribe a particular method of ending fetal life in the later stages of pregnancy. The Act does not regulate the most common abortion procedures used in the first trimester of pregnancy, when the vast majority of abortions take place. In the usual second. trimester procedure, "dilation and evacuation" (D&E), the doctor dilates the cervix and then inserts surgical instruments into the uterus and maneuvers them to grab the fetus and pull it back through the cervix and vagina. The fetus is usually ripped apart as it is removed, and the doctor may take 10 to 15 passes to remove it in its entirety. The procedure that prompted the federal Act and various state statutes, including Nebraska’s, is a variation of the standard D&E, and is herein referred to as "intact D&E." The main difference between the two procedures is that in intact D&E a doctor extracts the fetus intact or largely intact with only a few passes, pulling out its entire body instead of ripping it apart. In order to allow the head to pass through the cervix, the doctor typi. cally pierces or crushes the skull.

The Act responded to Stenberg in two ways. First, Congress found that unlike this Court in Stenberg, it was not required to accept the District Court’s factual findings, and that that there was a moral,

*Together with No. 05-1382, Gonzales, Attorney General v. Planned Parenthood Federation of America, Inc., et al., on certiorari to the United States Court of Appeals for the Ninth Circuit.

 

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medical, and ethical consensus that partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited. Second, the Act’s language differs from that of the Nebraska statute struck down in Stenberg. Among other things, the Act prohibits "knowingly perform[ing] a partial-birth abortion. .. that is [not] necessary to save the life of a mother," 18 U. S. C. §1531(a). It defines "partial-birth abortion," §1531(b)(1), as a procedure in which the doctor: "(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the [mother’s] body. .., or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the [mother’s] body. .., for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus"; and "(B) performs the overt act, other than completion of delivery, that kills the fetus."

In No. 05-380, respondent abortion doctors challenged the Act’s constitutionality on its face, and the Federal District Court granted a permanent injunction prohibiting petitioner Attorney General from enforcing the Act in all cases but those in which there was no dispute the fetus was viable. The court found the Act unconstitutional because it (1) lacked an exception allowing the prohibited procedure where necessary for the mother’s health and (2) covered not merely intact D&E but also other D&Es. Affirming, the Eighth Circuit found that a lack of consensus existed in the medical community as to the banned procedure’s necessity, and thus Stenberg required legislatures to err on the side of protecting women’s health by including a health exception. In No. 05-1382, respondent abortion advocacy groups brought suit challenging the Act. The District Court enjoined the Attorney General from enforcing the Act, concluding it was unconstitutional on its face because it (1) unduly burdened a woman’s ability to choose a second-trimester abortion, (2) was too vague, and (3) lacked a health exception as required by Stenberg. The Ninth Circuit agreed and affirmed.


Held: Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman’s right to abortion based on its over breadth or lack of a health exception. pp. 14-39.

1. The Casey Court reaffirmed what it termed Roe’s three-part "essential holding": First, a woman has the right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State. Second, the State has the power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering the woman’s life or health. And third, the State has legitimate interests from the pregnancy’s outset in protecting the

 

  Cite as: 550 U. S. -(2007) 3


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health of the woman and the life of the fetus that may become a child. 505 U. S., at 846. Though all three are implicated here, it is the third that requires the most extended discussion. In deciding whether the Act furthers the Government’s legitimate interest in protecting fetal life, the Court assumes, inter alia, that an undue burden on the pre-viability abortion right exists if a regulation’s "purpose or effect is to place a substantial obstacle in the [woman’s] path," id., at 878, but that "[r]egulations which do no more than create a structural mechanism by which the State . . . may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose," id., at 877. Casey struck a balance that was central to its holding, and the Court applies Casey’s standard here. A central premise of Casey’s joint opinion-that the government has a legitimate, substantial interest in preserving and promoting fetal life-would be repudiated were the Court now to affirm the judgments below. pp. 14-16.

2. The Act, on its face, is not void for vagueness and does not impose an undue burden from any over breadth. pp. 16-26.

(a) The Act’s text demonstrates that it regulates and proscribes performing the intact D&E procedure. First, since the doctor must "vaginally deliver] a living fetus," §1531(b)(1)(A), the Act does not restrict abortions involving delivery of an expired fetus or those not involving vaginal delivery, e.g., hysterotomy or hysterectomy. And it applies both pre-viability and post-viability because, by common understanding and scientific terminology, a fetus is a living organism within the womb, whether or not it is viable outside the womb. Second, because the Act requires the living fetus to be delivered to a specific anatomical landmark depending on the fetus’ presentation, ibid., an abortion not involving such partial delivery is permitted. Third, because the doctor must perform an "overt act, other than completion of delivery, that kills the partially delivered fetus," §1531(b)(1)(B), the "overt act" must be separate from delivery. It must also occur after delivery to an anatomical landmark, since killing "the partially delivered" fetus, when read in context, refers to a fetus that has been so delivered, ibid. Fourth, given the Act’s scienter requirements, delivery of a living fetus past an anatomical landmark by accident or inadvertence is not a crime because it is not "deliberat[e] and intentiona[l] , §1531(b)(1)(A). Nor is such a delivery prohibited if the fetus [has not] been delivered "for the purpose of performing an overt act that the [doctor] knows will kill [it]." Ibid. pp. 16-18.

(b) The Act is not unconstitutionally vague on its face. it satisfies both requirements of the void-for-vagueness doctrine. First, it provides doctors "of ordinary intelligence a reasonable opportunity to know what is prohibited," Grayned v. City of Rockford, 408 U. S. 104,

 

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108, setting forth "relatively clear guidelines as to prohibited conduct" and providing "objective criteria" to evaluate whether a doctor has performed a prohibited procedure, Posters ‘N’ Things, Ltd. v. United States, 511 U. S. 513, 525-526. Second, it does not encourage arbitrary or discriminatory enforcement. Kolender v. Lawson, 461 U. S. 352, 357. Its anatomical landmarks "establish minimal guide. lines to govern law enforcement," Smith v. Goguen, 415 U. S. 566, 574, and its scienter requirements narrow the scope of its prohibition and limit prosecutorial discretion, see Kolender, supra, at 358. Respondents’ arbitrary enforcement arguments, furthermore, are somewhat speculative, since this is a preenforcement challenge. pp. 18-20.

(c) The Court rejects respondents’ argument that the Act imposes an undue burden, as a facial matter, because its restrictions on second. trimester abortions are too broad. pp. 20-26.

(i) The Act’s text discloses that it prohibits a doctor from intentionally performing an intact D&E. Its dual prohibitions correspond with the steps generally undertaken in this procedure: The doctor (1) delivers the fetus until its head lodges in the cervix, usually past the anatomical landmark for a breech presentation, see §1531(b)(I)(A), and (2) proceeds to the overt act of piercing or crushing the fetal skull after the partial delivery, see §1531(b)(1)(B). The Act’s scienter requirements limit its reach to those physicians who carry out the in. tact D&E, with the intent to undertake both steps at the outset. The Act excludes most D&Es in which the doctor intends to remove the fetus in pieces from the outset. This interpretation is confirmed by comparing the Act with the Nebraska statute in Stenberg. There, the Court concluded that the statute encompassed D&E, which "often involve[s] a physician pulling a ’substantial portion’ of a still living fetus …, say, an arm or leg, into the vagina prior to the death of the fetus," 530 U. S., at 939, and rejected the Nebraska Attorney General’s limiting interpretation that the statute’s reference to a "procedure" that "kill[s] the unborn child" was to a distinct procedure, not to the abortion procedure as a whole, id., at 943. It is apparent Congress responded to these concerns because the Act adopts the phrase "delivers a living fetus," 18 U. S. C. §1531(b)(I)(A), instead of" ‘delivering …a living unborn child, or a substantial portion thereof,’ " 530 U. S., at 938, thereby targeting extraction of an entire fetus rather than removal of fetal pieces; identifies specific anatomical landmarks to which the fetus must be partially delivered, §1531(b)(I)(A), thereby clarifying that the removal of a small portion of the fetus is not prohibited; requires the fetus to be delivered so that it is partially "outside the [mother’s] body," §1531(b)(I)(A), thereby establishing that delivering a substantial portion of the fetus into the vagina would not

 

  Cite as: 550 U. S. -(2007) 5


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subject a doctor to criminal sanctions; and adds the overt-act requirement, §1531(b)(1), thereby making the distinction the Nebraska statute failed to draw (but the Nebraska Attorney General advanced). Finally, the canon of constitutional avoidance, see, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575, extinguishes any lingering doubt. Interpreting the Act not to prohibit standard D&E is the most reasonable reading and understanding of its terms. pp. 20-24.

(ii) Respondents’ contrary arguments are unavailing. The contention that any D&E may result in the delivery of a living fetus beyond the Act’s anatomical landmarks because doctors cannot predict the amount the cervix will dilate before the procedure does not take account of the Act’s intent requirements, which preclude liability for an accidental intact D&E. The evidence supports the legislative determination that an intact delivery is almost always a conscious choice rather than a happenstance, belying any claim that a standard D&E cannot be performed without intending or foreseeing an intact D&E. That many doctors begin every D&E with the objective of removing the fetus as intact as possible based on their belief that this is safer does not prove, as respondents suggest, that every D&E might violate the Act, thereby imposing an undue burden. It demonstrates only that those doctors must adjust their conduct to the law by not attempting to deliver the fetus to an anatomical landmark. Respondents have not shown that requiring doctors to intend dismemberment before such a delivery will prohibit the vast majority of D&E abortions. pp. 24-26.

3. The Act, measured by its text in this facial attack, does not impose a "substantial obstacle" to late-term, but pre-viability, abortions, as prohibited by the Casey plurality, 505 U. S., at 878. pp. 26-37.

(a) The contention that the Act’s congressional purpose was to create such an obstacle is rejected. The Act’s stated purposes are protecting innocent human life from a brutal and inhumane procedure and protecting the medical community’s ethics and reputation. The government undoubtedly "has an interest in protecting the integrity and ethics of the medical profession." Washington v. Glucksberg, 521 U. S. 702, 731. Moreover, Casey reaffirmed that the government may use its voice and its regulatory authority to show its profound respect for the life within the woman. See, e.g., 505 U. S., at 873. The Act’s ban on abortions involving partial delivery of a living fetus furthers the Government’s objectives. Congress determined that such abortions are similar to the killing of a newborn infant. This Court has confirmed the validity of drawing boundaries to prevent practices that extinguish life and are close to actions that are condemned. Glucksberg, supra, at 732-735, and n. 23. The Act also

 

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recognizes that respect for human life finds an ultimate expression in a mother’s love for her child. Whether to have an abortion requires a difficult and painful moral decision, Casey, 505 U. S., at 852-853, which some women come to regret. In a decision so fraught with emotional consequence, some doctors may prefer not to disclose precise details of the abortion procedure to be used. It is, however, precisely this lack of information that is of legitimate concern to the State. Id., at 873. The State’s interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion. The objection that the Act accomplishes little because the standard D&E is in some respects as brutal, if not more, than intact D&E, is unpersuasive. It was reasonable for Congress to think that partial birth abortion, more than standard D&E, undermines the publics perception of the doctor’s appropriate role during delivery, and perverts the birth process. pp. 26-30.

(b) The Act’s failure to allow the banned procedure’s use where " ‘necessary, in appropriate medical judgment, for preservation of the [mother’s] health,’" Ayotte v. Planned Parenthood of Northern New Eng.. 546 U. S. 320, 327-328, does not have the effect of imposing an unconstitutional burden on the abortion right. The Court assumes the Act’s prohibition would be unconstitutional, under controlling precedents, if it "subject[ed] [women] to significant health risks." Id., at 328. Whether the Act creates such risks was, however, a contested factual question below: The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their positions. The Court’s precedents instruct that the Act can survive facial attack when this medical uncertainty persists. See, e.g., Kansas v. Hendricks, 521 U. S. 346, 360, n. 3. This traditional rule is consistent with Casey, which confirms both that the State has an interest in promoting respect for human life at all stages in the pregnancy, and that abortion doctors should be treated the same as other doctors. Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. Other considerations also support the Court’s conclusion, including the fact that safe alternatives to the prohibited procedure, such as D&E, are available. In addition, if intact D&E is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act’s prohibition only applies to the delivery of "a living fetus," 18 U. S. C. §1531(b)(1)(A). Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 77-79, distinguished. The Court rejects certain of the parties’ arguments. On the one hand, the Attorney General’s contention that the Act

 

  Cite as: 550 U. S. -(2007) 7


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should be upheld based on the congressional findings alone fails because some of the Act’s recitations are factually incorrect and some of the important findings have been superseded. Also unavailing, however, is respondents’ contention that an abortion regulation must contain a health exception if "substantial medical authority supports the proposition that banning a particular procedure could endanger women’s health, " Stenberg, 530 U. S., at 938. Interpreting Stenberg as leaving no margin for legislative error in the face of medical uncertainty is too exacting a standard. Marginal safety considerations, including the balance of risks, are within the legislative competence where, as here, the regulation is rational and pursues legitimate ends, and standard, safe medical options are available. pp.31-37.

4. These facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge. Cf. Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 546 U. S. —’ -’ This is the proper manner to protect the woman’s health if it can be shown that in discrete and well-defined instances a condition has or is likely to occur in which the procedure prohibited by the Act must be used. No as-applied challenge need be brought if the Act’s prohibition threatens a woman’s life, because the Act already contains a life exception. 18 U. S. C. §1531(a). pp.37-39.

No. 05-380, 413 F. 3d 791; 05-1382, 435 F. 3d 1163, reversed.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion, in which SCALIA, J., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.


 
 
Take away God, all respect for civil laws, all regard for even the most necessary institutions disappears; justice is scouted; the very liberty that belongs to the law of nature is trodden underfoot; and men go so far as to destroy the very structure of the family, which is the first and firmest foundation of the social structure.
- St. Pius X, Jucunda Sane, March 12, 1904