The Nullification Machine

Sat, 01 Aug 1998 00:00:00 -0400

This May, a federal judge in Wisconsin created hysteria in the pro-abortion movement by refusing to grant a temporary injunction prohibiting the enforcement of the state’s partial-birth abortion ban while a lawsuit challenging the ban is pending. Abortion providers across the state, in what pro-life groups characterized as a “public relations ploy” to challenge the law, stopped performing all abortions, claiming that the law was “so vague” that it could be construed as prohibiting “virtually any surgical abortion.” Pro-abortion groups criticized the decision for “creating chaos” for women seeking abortions in the state. Rep. Nita Lowey (D-N.Y.) cited Wisconsin as “a preview of what will happen everywhere if the President’s veto of the partial-birth ban gets overriden.”

This staged hysteria was unnecessary, of course, as the Wisconsin law will almost certainly be declared unconstitutional in any event, the judge having stated in his order that the plaintiffs had demonstrated a “likelihood” of success in their challenge to the law. What the frenzy demonstrates, however, is the extent to which the pro-abortion movement has come to expect (and usually receive) favorable decisions from federal courts which, in the words of Justice Antonin Scalia, act as an “ad hoc nullification machine,” striking down even the most sensible and perfectly constitutional state abortion restrictions.

The recent decision by the United States Court of Appeals for the Sixth Circuit, Voinovich v. Women’s Medical Professional Corp., striking down Ohio’s partial-birth abortion ban, is a good example of what abortion providers and pro-abortion groups like those in Wisconsin now expect from the federal judiciary. Indeed, the court of appeals’ decision is a textbook example of just how far activist federal judges are willing to reach in order to strike down state abortion restrictions. The Supreme Court refused to review the decision (with Chief Justice William Rehnquist and Justices Scalia and Clarence Thomas dissenting), giving unmerited legitimacy to the absurd legal arguments in the appeals court opinion.

The Ohio law banned the use of the “dilation and extraction” abortion procedure, also known as “D & X” or “partial-birth abortion.” The proscribed procedure was defined as “the termination of a human pregnancy by purposely inserting a suction device into the skull of a fetus to remove the brain.”

The bill also restricted late-term abortions. First, all post-viability abortions were prohibited except where a physician determined, “in good faith and in the exercise of reasonable medical judgment,” that the abortion was necessary to prevent the death of the mother or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function. A fetus was rebuttably presumed to be viable at twenty-four weeks. Second, before any abortion could be performed after the twenty-second week of pregnancy, a physician was required to test to insure, “in good faith and in the exercise of reasonable medical judgment,” that the fetus was not viable. The viability test was not required, however, if a “medical emergency” existed. A medical emergency was defined as a condition requiring an abortion to prevent the death of the mother or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function.

Just over two weeks before the bill was to go into effect, an abortion provider in Ohio filed suit in federal district court seeking a declaration that the statute was “unconstitutionally vague” and placed an “undue burden” on the rights of pregnant women to have abortions. The district court struck down the law, and Ohio appealed the decision to the court of appeals.

The court of appeals began its decision by giving the bill an unreasonably broad construction, guaranteeing that the court would find it “vague” and “unduly burdensome.” Despite the fact that the partial-birth abortion ban expressly proscribed only the “dilation and extraction” method of abortion, the court held that the statute could be construed as prohibiting another, more commonly used abortion procedure known as “dilation and evacuation.” In order to demonstrate how it reached this counterintuitive conclusion, the court stated that it would be “useful to summarize how and when the three procedures implicated by the Act are performed.” These summaries are disturbing enough to shock even the most ardent of abortion supporters.

During the first trimester, the court wrote, the most commonly used abortion procedure is the “suction curettage” or “suction aspiration” method. During this procedure, which is sometimes used up to the fifteenth week of a pregnancy, “the physician mechanically dilates the pregnant woman’s cervix by means of metal rods, inserts a vacuum apparatus into the uterus, and removes the fetal matter by means of negative suction.”

During the second trimester, the most commonly used abortion procedure is the “dilation and evacuation” procedure, or “D & E.” This procedure is used, the court explained, when a suction procedure is no longer feasible “because the fetus is too large to remove by use of suction only.” During the D & E procedure, the woman’s cervix is dilated and a larger suction curette is placed into the uterus. “With the suction curette,” the court continued, “the physician can remove some or all of the fetal tissue. However, the torso and the head of the fetus often cannot be removed using the suction curette.” As a result, the court stated,

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The Nullification Machine