Laying pro-life groundwork.

The Supreme Court has upheld a partial-birth abortion ban by a 5-4 vote, and a careful reading of the opinion reveals that Gonzales v. Carhart is a solid work of jurisprudence that not only protects babies from partial-birth abortion but also lays the groundwork for future pro-life victories.

For decades, the federal courts have used a three-tier standard to analyze constitutional-rights cases. Cases involving "preferred" rights such as speech and press are classed as "upper tier," which means governmental agencies can infringe upon those rights only if they can demonstrate a compelling state interest that cannot be achieved by less restrictive means. "Middle tier" rights, such as the right to be free from gender discrimination, can be infringed only upon a showing that the regulation bears a substantial relationship to an important governmental interest. "Lower tier" rights, such as property rights, can be infringed whenever the government can demonstrate that the restriction bears a reasonable relationship to a legitimate governmental interest.

Although this three-tier analysis has no grounding in the Constitution, it is crucial to understand how the courts adjudicate constitutionally protected rights. It is far easier to prove that a law bears a reasonable relationship to a legitimate state purpose, than to prove that the state has a compelling interest that cannot be achieved by less restrictive means. To give abortion constitutional protection and insulate the procedure from future attack, Justice Blackmun in the 1973 Roe v. Wade decision classified abortion as a fundamental "upper tier" right. He then arbitrarily declared that the state's interest in the life of the child becomes compelling only at the point of viability (when the child is capable of surviving outside the womb), which he equated with the beginning of the third trimester of pregnancy.

The most important holding of Gonzales is that "the government has a legitimate and substantial interest in preserving and promoting fetal life." Abortion is now a middle-tier rather than an upper-tier right; consequently, restrictions on abortion that might previously have been struck down are now more likely to be upheld. And Justice Kennedy has blurred, if not utterly swept away, the "viability" test for determining whether the state can protect fetal life. Regulations that protect the unborn child prior to viability are now more likely to be upheld.

Justice Kennedy quotes medical testimony that graphically describes the horror of partial-birth abortion: while the head was still inside the uterus, "the baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction.... The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp." (If you cannot read this without recoiling with revulsion, I congratulate you on being human.)

Kennedy quoted this graphic description, not only to show the public what partial-birth abortion really is, but to demonstrate that Congress correctly determined that a "moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion ... is a gruesome and inhumane procedure that is never medically necessary and should be prohibited." The disturbing effect of partial-birth abortion on medical personnel, and the guilt it engenders in those who must live with its consequences, are additional state interests that justify the prohibition.

Justice Ginsberg's dissent chides the majority for calling abortion providers "abortion doctors" instead of using their proper medical titles. She rehashes the pro-abortion rhetoric about women's rights (with no concern whatsoever for baby girls), complains that the distinction between viability and pre-viability has been blurred, and claims "Nonintact D&E [the dilation of the mother and the dismemberment of the baby and evacuation of the baby's remains] could equally be characterized as 'brutal.'" Unwittingly, she has just made our case for banning nonintact D&E and other forms of abortion as well.

Justices Thomas and Scalia joined the majority opinion but also wrote a concurring opinion that went further. While the majority reduced abortion to a middle-tier right, Thomas and Scalia rightly remind us that "the Court's abortion jurisprudence ... has no basis in the Constitution" and that the regulation of abortion should be a state function.

May the day soon come when Justices Thomas and Scalia speak for the majority!

John Eidsmoe, a retired Air Force lieutenant colonel, is Senior Staff Attorney with the Alabama Supreme Court.