Sunday, November 12, 2006


The hardest part of being a vegetarian is trying to order and obtain actual, honest-to-god vegetarian food in restaurants - particularly fast-food restaurants. Even in the more expensive restaurants, there seems to be a perception among waiters that "mostly vegetarian" is somehow equivalent to "vegetarian."

Exempli gratia: "Our soup of the day is, ahem, mostly vegetarian. It was made with chicken broth, but all the other ingredients are vegetarian, so you should be fine."

You should be fine. That fucking kills me. The waiter thinks it's fine if I get a little meat with my dinner. Awesome.

I also love when waiters give you language of equivocation when you are asking about a particular menu item. Q. "Does your pizza sauce have meat in it?" A. "Hmm, probably not." This is usually followed by, "You should be fine."

And that's what you get in most nice restaurants where the chefs have been to school. The average fast-food restaurant is so vegetarian unfriendly that it is almost not worth trying.

Little-known fact:
Colonel Sanders invented the phrase "mustache ride."

For example, as a little experiment, go into any KFC in America and ask the white-trash 16-year-old behind the counter if KFC has any vegetarian items on the menu. You can bet that this will be the first time the kid has ever heard or contemplated this question.

You will definitely be met with an open-mouthed blank stare and, perfectly executed in accordance with section VII-A, subpart (b)(iii) of the KFC instructional 3-ring binder written entirely by one Harland Sanders (said subpart being titled, "What To Do If Someone Asks For Vegetarian Selections"), the kid running the register will turn and holler for the manager.

And just so you know, KFC is petitioning the US Postal Service to create a postal stamp in honor of the good Colonel. Good fucking god.

McDonald's is almost as bad for vegetarian items, although they do have some salads and yogurt-and-fruit thingies that a vegetarian could eat if she were trapped inside the McDonald's for a prolonged period of time and began to starve.

My grandfather (my dad's dad), who was allergic to cucumbers, used to disparage these phallic green nutritionless vegetables at every opportunity. He'd say, "If you had two hogs, and you fed one of them nothing but cucumbers, and you fed the other one nothing, the one that ate the cucumbers would starve to death first." I feel basically the same way about the vegetarian "options" at McDonald's.

Don't take your cucumber to the airport.

(Although, the last time I was in NY, a McDonald's there was advertising a veggie burger. What they don't advertise is that the veggie burgers are cooked in the same grease and shit that the other "hamburgers" are cooked in. Regardless, I suspect there is very little actual meat being prepared at any McDonald's.)

Taco Bell's Web site provides a decent guide to vegetarian options available at their restaurants, although actually ordering one of these vegetarian possibilities is usually much more difficult in practice.

Asking for a grilled stuft [
sic] burrito without the chicken or beef, for example, is usually met with an incredulous, "You don't want any meat?", in the same tone and with the same attitudinal head toss the register operator might use if you asked her to take her shirt off. She will then turn and, in addition to entering the order into the fancy Taco Bell computer system, yell the order to the scary-looking "burrito chef," just to make sure he knows it's not a drill or a joke or something: "Grilled-stuft burrito, no meat!"

This is almost always followed by an equally incredulous shout from the guy in the back making the burrito who has heard the command from the front and simultaneously read the order ("GRILLED STUFT - NO CHICKEN/BEEF") on the Taco Bell order monitor: "No meat?!" Which prompts the reply: "No, he don't want meat on it."

The idea that someone wouldn't want meat on a burrito is simply beyond their imagination. It feels like what would happen if you went to the gas station and asked them to put Dr. Pepper into your car instead of gas. Very awkward.

"Why don't you want any meat?"

"Because I'm a vegetarian."

"You're an animal doctor? Say, sweetie, you want mild, hot, or fire?"

Subway actually has a veggie sub on the menu, and some Subways here and there offer a "veggie patty" sandwich (also known variously as the Veggie Max or VeggieMax in some locales). The Veggie Max consists of a pressed vegetarian patty of unknown composition that resembles in size and texture McDonald's (or is it McDonald's's?) ubiquitous McRib, yet unlike the McRib it is allegedly meat-free and loaded with protein. The Veggie Max is kind of like the Big Foot of sandwiches: there are some very poor-quality pictures of it, but no one is really 100% sure it exists.

Doesn't that look good?! Yeah, I know. Not so much. This was the only picture I could find of the elusive Veggie Max.

Even if a particular Subway does offer the Veggie Max, it will rarely appear on their menu boards and even more rarely will you encounter a "sandwich artist" who has actually prepared a Veggie Max. Apparently it is not something they teach you at Subway training school. And because I am the only person in North Carolina who orders the Veggie Max, I am usually met with perplexed stares when I request it. Here is an excerpt from my most recent Subway visit:

Sandwich artist: "Welcome to Subway."

Me: "Thanks. How're you doing today?"

Sandwich artist [apparently perceiving my question to be rhetorical, he gets right to business]: "What can I get for you today?"

Me: "Do you guys have the veggie patty?" [and then with increased uncertainty]: "You know, the Veggie Max?"

Sandwich artist [turns to look at menu board]: "Uh, no, I don't think so."

[Pregnant pause.]

Me [what I'm thinking is, "Well, can you fucking check and make sure?", but what I say is]: "I think you had some in the freezer the last time I came in. Do you mind checking?"

Sandwich artist [what he's thinking is, "Yeah, why don't you just eat one of my balls?", but what he says is]: "Yeah, dude, I'll check."

Ten agonizing minutes pass and the sandwich artist returns from the bowels of the store with two hard-frozen steaming blocks of vegetarian glory wrapped in wax paper.

And this brings me to another problem with the Veggie Max: because it is so infrequently ordered, the patties themselves tend to languish in Subway freezers for so long that by the time they see the light of day, they have taken on a freezer-burned quality not at all dissimilar to what that poor 5000-year-old bastard somebody found frozen in the Alps probably had when they fished him out of that ravine a few years ago. Freeze something for long enough and shit can happen to the molecular structure. This is true of the Veggie Max as well.

Sucks to be this guy. Wasn't he in The English Patient?

Sandwich artist: "Yeah, I found some, dude. Do you know how long these are supposed to cook?" [He's asking me.]

Me [what I'm thinking is, "You're the fucking sandwich artist." What I actually say is]: I think they usually microwave two of them side-by-side for two minutes."

Sandwich artist [what he's thinking is, "I'd like to put your head in the microwave, you whiny bitch." What he actually says is]: "Ok."

He throws them into the microwave and sets the timer for five minutes. He then says: "What kind of bread do you want?"

Me: "Honey oat. Footlong."

Sandwich artist: "American, Swiss, or provolone?"

Me: "American, please. And can I get extra cheese?" [Protein is scarce when you're a vegetarian. You have to get it where you can.]

Sandwich artist: "Yeah, but it'll be extra."

Me [what I'm thinking is, "Oh, fuck. I'd better check and see how much money I've got. I guess you better leave it off, then." What I actually say is]: "Yeah, that's fine."

He then proceeds to spend five full minutes delicately picking apart the pieces of cheese to put on my sandwich, because he is wearing those ridiculous plastic ill-fitted, unnecessarily large gloves that sandwich artists have to wear at Subway. These gloves do not lend themselves well to precision work.

The next part of the process - where I pick out the vegetable toppings for my sandwich - is equally difficult at every Subway, because veggie patty or no, the sandwich artists usually do not comprehend that a veggie sandwich really needs to be piled pretty high with vegetables or else it is not like a sandwich at all, but rather more like eating one of those starter salads you get at Chinese restaurants that consist entirely of a wedge of iceberg lettuce and about 23 thinly sliced carrot shards. It hits your stomach and disappears like a butter-pecan waffle cone falling into a pit of molten lava. So at Subway, you really have to press them to give you enough vegetables to make the whole thing worthwhile. Accordingly, the next part of the ordering process goes something like this:

Me: "I'd like tomato . . ."

Mr. Sandwich artist picks through what can only be described as 'tomato scraps,' which are the pallid, sad-looking tomato pieces that Subway sells in lieu of actual red ripe tomatoes. He puts like four of them on my sandwich and then looks up at me expectantly.

Me: "Can I, uh, get a few extra tomatoes?"

Sandwich artist: "It'll be extra" [he says in the same tone my grandmother used to use with me when she'd warn me that something was going to ruin my supper].

Me: [involuntarily, first I stare blankly, then I close my eyes in exasperation and nod affirmatively]

He continues making the sandwich. I get two extra tomatoes. At this point, he has correctly discerned that I'm a prick and he's playing passive-aggressive with me.

Me: "Black olives."

He puts 8 black olives on the sandwich.

Me: "Spinach."

Sandwich artist [now tired of the game, he looks absently outside and says through a sigh]: "Uh, yeah, dude, we no longer sell spinach." [Except he pronounces it "spinage."]

Me: "Ok, then, a little lettuce."

He proceeds to put about 2 pounds of lettuce on the sandwich. He buries the sandwich in lettuce. It was like he'd waited his whole fucking life to put lettuce on this sandwich. Apparently somewhere in the Subway 3-ring binder it says "liberally pile lettuce on the sandwich." It probably also says, "This makes the sandwich look heartier and makes up for the lack of other more expensive toppings."

Me: "And a lot of salt and pepper."

He picks up the patented Subway "salt and pepper in one cannister" shaker and gives me two good shakes, depositing on my sandwich a scientifically undetectable amount of either salt or pepper. Realizing now that I have been soundly defeated by the sandwich artist, I relent.

Me: "And I guess that will do it."

The sandwich artist then turns and opens the microwave, producing from it two scorched but now lukewarm vegetable patties of unknown composition and drops them asymmetrically on my pathetic, rather sparse-looking sandwich. He violently folds the sandwich in half - causing 1/3 of the contents to shoot out onto the counter - and cuts the sandwich but stops short of slicing all the way through, such that I'll have to tear the two halves of the sandwich apart once I get into the car, which necessarily will send lettuce all over my lap.

Sandwich artist [feeling conciliatory now that he's soundly defeated another whiny customer]: "I've never had the veggie patty. Is it good?"

Me: "It's not bad. See, I'm a vegetarian . . ."

Sandwich artist [What he's thinking is, "You're an animal doctor?" What he says is]: "I'm not sure, but I think that patty's got some chicken in it, dude. But you should be ok."

And this happens pretty much every single time I go into Subway. It is excruciating. The sad thing is that the Veggie Max, 9 times out of 10, fucking blows. The veggie patty is in fact usually freezer burned to hell, and microwaving something that is freezer burned usually just turns it to shit. I don't even know why I do it. I think I've had my last Veggie Max. Death to the Veggie Max.

* * *

For next time: an excerpt from a new play from Silas T. Comberbache and some interesting facts about Herman Melville that they don't teach you in school (such as, for example, that Moby-Dick is an extended homoerotic metaphor that traces one man's quest to find an inordinately large penis). (Think about it: Moby "Dick" - a sperm whale? And there's much, much more.)

Sunday, July 23, 2006


A recent Washington Post article discusses new scientific findings that suggest "evolution is not just real but is happening to humans right now." According to the article, "Signals of natural selection are incredibly widespread across the human genome. . . . Everywhere we look, there appears to be very widespread signals of natural selection in many genes and many processes." So says Jonathan Pritchard, a geneticist at the University of Chicago, which, by most accounts, is a pretty good school.

Pictured at the outset of the article in the clever morphing gif is Stephen Jay Gould, a paleontologist and evolutionary biologist who taught at Harvard for a number of years and wrote prolifically about evolution.

Every month for 27 years Gould published an essay in Natural History magazine under the thematic title "This View of Life," the inspiration for the title borrowed from the last paragraph of Darwin's Origin of Species: "There is grandeur in this view of life, with its several powers, having been originally breathed into a few forms or into one; and that, whilst this planet has gone cycling on according to the fixed law of gravity, from so simple a beginning endless forms most beautiful and most wonderful have been, and are being, evolved."

Gould was pretty damn good at identifying patterns and analogues between scientific concepts and other broad or "universal" abstractions that Gould would draw from the limitless diversity of other fields of study and interest. He would then paint elegant parallels between these diverse concepts to illustrate or illuminate often subtle (and sometimes controversial) scientific ideas, most often pertaining to a precise aspect of evolutionary biology.

In one notable case indicative of the breadth of the subject matter from which Gould derived his canvas of ideas, he examines in truly excruciating detail the disappearance of .400 hitting in baseball and then draws some remarkable analogies between this decline in excellence and the development of complex life forms on Earth.

In another essay - in fact, his last essay for Natural History - Gould illustrates a graceful parallel between the miracle of uninterrupted continuity of life on Earth and our personal unbroken genealogical continuity, one commonality being our apparent innate desire to understand the full lineage and history of both.

Bridging both aspects of the continuity of life by an additional parallel to Gould's span of consecutive essays published in Natural History - 300 months without fail - Gould explains his inspiration for this last essay: "If continuity so tugs at our heartstrings and so defines our sense of being within the expanding totalities of a personal family, the full human species, and the entire tree of life—and if unbroken continuity defines both the awe of 'this view of life' and the conceit of a little literary microcosm also called 'This View of Life'—then how else can I end except with a paean to continuity on both scales?"

Most poignant is Gould's conclusion to this last essay in which Gould, perhaps unconsciously prevising his impending mortal exit, recalls words written by his maternal grandfather upon his 1901 arrival in America as a 14-year-old boy after traveling from Europe by ship. He wrote simply, "I have landed." These words of beginning, so auspicious and hopeful when penned by his grandfather 100 years prior, were Gould's humble yet eloquent words of conclusion.

Gould died in May 2002 from cancer at age 60, only 14 months after the printing of his last essay. I remember learning about his death from the front page of USA Today. I was living in Hickory at the time, and I had agreed to meet a friend for lunch at the The Olde Hickory Tap Room, a restaurant and brewery local to Hickory that serves some excellent dark beers, a pretty good appetizer of "pub chips," and a very convincing black-bean burger (I have yet to taste its equal).

I seem to remember that the parking lot outside the Tap Room still offered evidence of an earlier rain, but the sun had arrived before noon and I distinctly recall feeling optimistic about the day and the approaching weekend. I had arrived a few minutes early for lunch, and I needed something to occupy my mind until the arrival of my lunch companion.

The occasions on which I do not have at least two books in my car are extremely rare. (At present I have a collection of Mencken essays in the front seat and my now-tattered copy of You Can't Go Home Again in the back seat.) Nonetheless, on this mixed-weather day in May four years ago, I was without tome or text of any sort, so my neurotic desire to read impelled me to pick up a newspaper.

USA Today is usually my last choice for a paper, so I can only assume that other papers of record were not available. I turned the top section of the paper up to read it as I walked quickly and happily down the brick sidewalk along the storefronts toward the Tap Room. The notice that Gould had died was placed in the upper right-hand corner of the paper, and it stopped me cold. Truly, it shocked the hell out of me. I stood and stared at the paper in complete disbelief.

I never made back to work that afternoon. Instead I remained at the Tap Room with some friends and we consumed a veritable shit-load of dark beers in Gould's honor and memory. As the day progressed and smoke from the afternoon's cigarettes silently augmented the long-fuliginous corners of the bar, my despair waned under the power of the alcohol and Gould's fleeting life and demise seemed to grow more distant . . . yet I retained sufficient presence of mind to remain thankful for the man and the sense of wonder he had reinforced in me with his insight and ardent passion for learning and knowledge.

Gould developed stomach cancer in 1982, but he had overcome the disease, and I knew this because I had read much of what Gould had written in regard to his bout with cancer. I had not heard prior to that day in May 2002 that his malady had returned. Still, I felt a profound sense of loss upon reading of his death.

Of course I did not know Stephen Jay Gould, nor did I ever meet him or even exchange correspondence with him. For all I know, the man might have been a royal ass, and a friend of mine who had occasion to interact with Gould attests that may have been the case. As such, it is perhaps foolish of me to have been so moved upon learning of his death, for I did not know him, and it could be argued that we should reserve such feelings for those whom we know sufficiently well to warrant such emotion.

Yet, I had read most of Gould's books and essay collections (except, most notably, The Structure of Evolutionary Theory, a 1400-page treatise that one could more easily find utility for as a tire scotch or bed lift than as reading material given its technical nature and length), and almost without fail I found his writings to be a nearly endless source of magnificent information and wonder.

At some point in my life - when I was still but a boy of 11 or 12 - most of the useful information I had learned up to that time was gleaned from the pages of National Geographic, which my parents kept in disordered stacks in the corners of our upstairs library. Now, having aged slightly since that time, I attribute much more of my knowledge and understanding of the universe - and indeed, life - to the wonderful insight of Gould. We are fortunate that he lived; he left us better than he found us.

Seeing Gould's visage on the Washington Post Web site made me miss him again. I raise my glass - a dark beer, not from the Tap Room, but perhaps close enough - in his memory.

Click here to view a short photo journal about Gould put together by Jill Krementz (author, photographer, and wife of Kurt Vonnegut).

Monday, May 29, 2006


“Again and again the uterus contracts as the cervix opens up. The tiny passageway that once allowed the entrance of a single file of sperm now must widen to about four inches to accommodate a baby’s head. . . . Human births are far more dangerous than those of other mammals or even other primates. The human brain is three to four times bigger than an ape’s brain. And the pelvis is narrower to allow us to walk upright. A human baby has to go through contortions to make it through the narrow opening. Sometimes, there is simply not enough room.” Life’s Greatest Miracle (PBS television broadcast, Nov. 20, 2001).

This quotation introduces the federal district court opinion in Carhart v. Ashcroft, a case that addresses the Partial-Birth Abortion Ban Act, Congress’s latest attempt to outlaw “partial-birth abortion.” As I will describe, the federal court in Carhart ruled that the Partial-Birth Abortion Ban Act was unconstitutional on a number of grounds. The government appealed the district court’s ruling to the U.S. Court of Appeals for the 8th Circuit. On appeal, the 8th Circuit Court of Appeals summarily affirmed the judgment of the district court.

On February 21 of this year, the newly constituted United States Supreme Court, recently packed with two new Bush appointees (Roberts and Alito), announced it would review the constitutionality of the Partial-Birth Abortion Ban Act. This could indicate that the new Court intends to reverse the rulings of the lower federal courts, which would allow the Partial-Birth Abortion Ban Act to remain law.

It could also indicate that the Court wishes only to disagree with the legal standards employed by the various federal courts -- the proper standard to apply was very much at issue in Carhart -- which would likely mean that the substance of the lower court rulings would stand. At this point, no one knows the answer to this question but the justices of the Supreme Court.

I have spent the better part of the last two months reading about “partial-birth abortion” and abortion generally, and I believe I have learned a great deal about this terribly divisive subject. I am certainly more enlightened than I was just a few months ago, yet I do not pretend to truly understand the subject or comprehend fully all the issues.

It is beyond peradventure that, as a man who is incapable of becoming pregnant and who will never face legislation that dictates whether I must carry a baby to term despite any reason I might have for terminating the pregnancy, I cannot speak with meaningful depth or understanding on this subject. Nonetheless, I will endeavor to articulate what I have learned in the hope that I may shed some limited insight on this topic that is so frequently misunderstood but so vital to our national conscience and political dialogue.

I chose “partial-birth abortion” as the first part of the Scarlet Letter series because it is the most easily understood and contains the least amount of material that fair-minded people can disagree about. In fact, the subject and its treatment by Congress and the various state legislatures can be summarized with far greater brevity than the greater abortion debate, although brevity is sadly not one of my strong points (as some of you have pointed out).

I shall first define the practice in simple, non-medical terms, and then I will explain the legislative history of “partial-birth-abortion” bans and the reaction to such bans by the courts. I will then attempt to explain why Congress and state legislatures have repeatedly tried to pass laws proscribing “partial-birth abortion” despite the absolute and profound vacuity of these laws.

As you will see in due course, legislative attempts to outlaw “partial-birth abortion” amount to little more than politically motivated attempts to draw an uninformed public’s attention to the gruesome nature of abortion. If not found unconstitutional by the Supreme Court, laws banning “partial-birth abortion” would not reduce the number of abortions; they would not save the life of a single fetus; nor would they protect or promote the health or well being of women. Sadly, the only real effect of outlawing “partial-birth abortion” is to increase the medical risk for certain women experiencing pregnancy complications.

A brief note about terminology: at the outset of this article, I have used the term “partial-birth abortion” to describe the subject matter herein because that is the term that is popular in the common lexicon. It is, unfortunately, a misleading description of the procedure and is therefore problematic. The medical term for the procedure is “intact D & E,” the “D & E” standing for “dilation and extraction,” which refers to the dilation of the cervix and the extraction of the contents of the uterus.

The American Medical Association, the American College of Obstetricians and Gynecologists, medical experts who write and lecture about the subject at this country’s premiere universities, and the courts (state and federal) prefer “intact D & E.” Congress and many state legislatures prefer the dysphemism “partial-birth abortion,” no doubt because it is conjures a more graphic association, thereby furthering the cause of attacking the right to abortion.

However, one benefit of using “partial-birth abortion” rather than “intact D & E” is that the former can conveniently be used to refer to the practice generally, while the latter tends to refer only to the procedure singularly—and such singular referential capability limits its utility as a phrase. As such, the former is somewhat more convenient despite its obvious incorrectness. In the interest of precision, I will employ “intact D & E” when possible, but I may occasionally fall back on “partial-birth abortion” when I need to refer to the subject as a whole.

A Few Misconceptions.

Contrary to what a lot of people seem to think, there are no women who are popping by their local abortion clinics and having intact D & E abortions performed. Intact D & Es are not performed in abortion clinics. They are performed in hospitals, and they are almost always performed when the situation is very dire for the mother or the child, or both.

An intact D & E is a procedure only used in advanced pregnancies (after 20 weeks of gestation). It is most often performed when the child has developed severe defects that make it unlikely to survive outside the womb, or which in some instances may leave the child in a severely deformed or defective state, such as being born without arms, legs, or vital organs. The procedure is also performed when the mother has a medical condition such that carrying a child to full term and giving birth may dramatically threaten her life or health.

Most women who are forced to terminate a pregnancy at such a late stage want to have a child, experience severe emotional distress upon having to terminate the pregnancy, and, in consultation with their physicians, only choose to end the pregnancy in the interest of the hopelessly defective child, their own life or health, or a combination of these factors. Put another way, most of the women who undergo this procedure do not wish to terminate their pregnancy but choose to only because it is a medical necessity.

The Procedure.

In simplest terms, an intact D & E is a method of abortion that is used to terminate fairly advanced pregnancies (20 weeks and beyond). It consists of dilating the cervix (usually over the course of a couple days) to the point that the physician performing the abortion can, using an instrument, grasp some part of the fetus and pull most of the fetus through the cervical opening. Usually, by this point in the pregnancy, the fetal head is too large to pass through the cervix. As such, it is necessary for the doctor collapse the fetal head to make it small enough to pass through the cervix.

An intact D & E is a variation of the procedure known generally as “D & E” (also called a “dismemberment D & E”), in which the physician dismembers the fetus in the womb and removes the fetal parts one at a time. The reason the former is called an intact D & E is that the fetus emerges from the womb intact rather than in several pieces. In both cases, the fetal head must be collapsed before it can be removed from the uterus.

There are numerous other abortion procedures that are employed to terminate advanced-term pregnancies, but many of them require multiple instrument passes into the uterus, a practice that most physicians agree increases the risk of injury to the mother. In addition, in-the-womb dismemberment of fetuses, as opposed to the intact method of termination, often leaves fetal tissue, blood, and other organic material inside the mother, all of which tends to increase the likelihood of infection and creates potential for other medical problems that may be harmful and even fatal to the mother.

When I first read about the intact D & E procedure and saw graphics that accurately portrayed the operation, I was horrified. I immediately understood why Congress and many state legislatures have been trying to outlaw the procedure. Truly, it shocks the conscience to see a 20- or 24-week-old fetus being partially delivered to the point that the doctor can reach the fetal head with an instrument that removes the contents of the fetus’s cranium. There is no question that it is a gruesome and frightening procedure.

Initially, I couldn’t understand why nearly every federal court that has addressed such laws had held the laws to be unconstitutional. Thus began my research.

Necessary Background: The “Life Exception” and the “Health Exception.”

As I described in a previous post (Prolusion, April 16, 2006), the Supreme Court in Roe v. Wade (1973) held that, before fetal viability (the point at which the fetus can survive outside the womb), women have the right to choose to terminate their pregnancy. After the point of viability, because of the State’s interest in the potentiality of human life, it is permissible for the state to regulate or even outlaw abortion except where an abortion is deemed necessary to preserve the life or the health of the mother. The first part of this exception is known as the “life exception”; the second part, the “health exception.”

Nineteen years after Roe, the Supreme Court affirmed the right to choose in Planned Parenthood v. Casey (1992). In Casey, the Supreme Court reiterated the life and health exceptions: “subsequent to viability, the State in promoting its interest in the potentiality of human life may . . . regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or the health of the mother.”

In other words, under Roe and Casey, any law regulating abortion or a method of abortion—even late-term abortions that occur after the point of fetal viability—must contain both a life exception and a health exception. It is important to note, however, that most "partial-birth abortions" involve fetuses that have not yet reached the point of viability.

Prior Legislative History.

From 1995 to 2000, Congress made several attempts to ban “partial-birth abortion,” all of which were vetoed by President Clinton. However, several states managed to pass laws proscribing “partial-birth abortion” during the last part of the 20th century, but many of the state statutes expressly excluded a health exception.

The states argued, as Congress would later argue, that the health exception was unnecessary because safe alternatives to “partial-birth abortion” were available, such that an intact D & E was never truly medically necessary to preserve the health of the woman in light of these other “safer” alternatives. According to the states, if other methods of abortion existed and these methods were as safe or safer than the intact D & E procedure, the health exception would never be triggered by the missing alternative of the intact D & E.

Under these state laws, if your doctor determined that an intact D & E was necessary to save your life, you could undergo the procedure—because the laws did contain a life exception. However, if your life was not in jeopardy, you could not avail yourself of the procedure, even if your doctor determined that an intact D & E was the safest procedure available under your specific set of medical circumstances (i.e., other more dangerous abortion procedures were available).

It is difficult to overlook the staggering failure of logic that attempts to reconcile within a single statute the contrary notions that there might exist some circumstances in which an intact D & E is necessary to save a woman’s life, but there are no circumstances in which an intact D & E is necessary to preserve the woman’s health. However, this was not the basis on which the United States Supreme Court, in Stenberg v. Carhart (2000), invalidated the various state laws that sought to ban the intact D & E procedure in the late 1990s.

Prior Judicial History: Stenberg v. Carhart.

In Stenberg, after reviewing the testimony of numerous expert witnesses on both sides of the “partial-birth abortion” issue, the Supreme Court held that “significant medical authority supports the proposition that in some instances, [intact D & E] would be the safest procedure.”

The Court also held that because post-viability abortions (which occur after the point that the State's interest in protecting the "potentiality of human life" is heightened) require a health exception, certainly pre-viability abortions (such as "partial-birth abortions") require a health exception as well.

The Stenberg Court then went on to establish a logical corollary of the health exception to specifically address the issue of the missing health exception in the state "partial-birth abortion" laws. The Court declared that a State may not endanger a woman’s health when it regulates methods of abortion, nor may a State force women to use riskier methods of abortion.

As such, these early state statutes criminalizing “partial-birth abortion” met an early demise due to their intentional exclusion of a health exception, chiefly because the laws would have forced some women to undergo more dangerous abortions than necessary.

Exactly why these states purposefully omitted a health exception in direct contravention of the dictates of Roe and Casey, thereby risking a nearly immediate judicial extermination, is a fascinating question. If you believe the states’ argument that safer alternatives to “partial-birth abortion” were available and that an intact D & E was never necessary to preserve the health of a woman, to include the health exception would have had very little effect on the actual application of the law, for the exception would have been rarely invoked, if ever.

The Most Recent Law.

In 2003, Congress attempted to criminalize the intact D & E procedure yet again (the Partial-Birth Abortion Ban Act) and President Bush happily signed the bill into law. The full text of the law can be found here. (Print it and read it. It is only seven pages and it takes 5 minutes to read. You'll be amazed.)

Note in paragraph 8 of section 2 of the congressional “findings,” Congress tries to stake out constitutional territory by asserting “Congress is entitled to reach its own factual findings,” regardless of the what the Supreme Court found to be true about the relative safety of the intact D & E procedure in Stenberg.

Recall the Supreme Court’s ruling in Stenberg that “significant medical authority supports the proposition that in some instances, [intact D & E] would be the safest procedure.” In order to effectively overrule Stenberg and the Supreme Court (not through the courts but legislatively—a constitutional end-run, so to speak), Congress argued that the Supreme Court got it wrong in Stenberg and that Congress—not the courts—would be the branch of government to make factual determinations in regard to federal law.

Congress very pointedly claimed—with an unscientific certainty usually reserved for religious pontification—that despite the Supreme Court’s ruling to the contrary in Stenberg, an intact D & E is in fact never medically necessary to preserve the health of the woman.

The law, which only runs to seven pages, contains the following language of certitude (my emphasis in each example):

"A moral and medical 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.”

"[P]artial-birth abortion remains a disfavored procedure that is not only unnecessary to preserve the health of the mother, but in fact poses serious risks to the long-term health of women . . . ."

“[O]verwhelming evidence presented and compiled at extensive congressional hearings . . . demonstrates that a partial-birth abortion is never necessary to preserve the health of a woman . . . .”

“Congress has reached its conclusion that a ban on partial-birth abortion is not required to contain a ‘health’ exception, because the facts indicate that a partial-birth abortion is never necessary to preserve the health of a woman."

“These findings reflect the very informed judgment of Congress that a partial-birth abortion is never necessary to preserve the health of a woman . . . .”

With this law, Congress is telling the Supreme Court that, in its “very informed judgment,” an intact D & E cannot possibly be and will never be the safest medical procedure for a woman requiring an abortion, presumably even considering the unfathomably broad spectrum of medical conditions and circumstances that may arise throughout the population.

In essence, despite the requirement from Roe, Casey, and Stenberg that laws limiting abortion rights must contain a health exception, Congress told the Supreme Court that the Court could take its health-exception requirement and stick said requirement right up the Court’s pasty-white jurisprudential ass.

Congress is Full of Shit.

The federal district court in Nebraska that first heard Carhart v. Ashcroft, the case challenging the Partial-Birth Abortion Ban Act, issued an excruciatingly detailed and thoughtful 474-page opinion that is available here if you are so pathetic that you have time to read something like this. (It took me about two weeks to get through the whole thing.)

The opinion examines, catalogues, and summarizes with forensic determination all the testimony and other evidence Congress relied upon in making its “very informed judgment,” and it also recounts nearly all the in-court testimony that was given under oath before the federal court on the subject.

So as not to keep you in too much suspense, the court found that Congress was not just incorrect that the intact D & E procedure is never medically necessary to preserve the health of the woman; the court found the Congress was plainly and very obviously wrong, and that no reasonable person could have come to the same conclusion.

How wrong was Congress? Pretty fucking wrong, it turns out. Even the government’s primary witness at trial, the head of obstetrics and gynecology at Yale, testified that there were definitely circumstances in which an intact D & E would be the safest procedure for a woman forced to terminate her pregnancy due to complications. He stated that there were “compelling enough arguments as to [intact D & E’s] safety, that I certainly would not want to prohibit its use in my institution.”

Renowned medical professors and physicians from Columbia University, Cornell Medical Center, Johns Hopkins, Northwestern, Albert Einstein College of Medicine, NYU, the University of California at San Francisco, Boston Hospital for Women, the University of Rochester, and numerous other preeminent universities and medical institutions also testified similarly against Congress’s ban of the intact D & E procedure.

Additionally, the ACOG (the American College of Obstetricians and Gynecologists), a 44,000-member organization of physicians, all of whom are certified by the American Board of Obstetrics and Gynecology, issued a policy statement introduced at trial that reads in part: “An intact D & X . . . may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman’s particular circumstances can make this decision.” (The ACOG went further to say that “[t]he intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous.”)

Now, recall the congressional finding that the intact D & E procedure is never medically necessary to preserve the health of a woman. Of the 11 doctors with abortion experience who presented information to Congress, 10 of them disagreed with this finding. Of the eight doctors who presented information to Congress who had actually used the banned procedure, seven of them opposed the ban and argued that the procedure was the best and safest procedure in certain circumstances.

And now recall the congressional finding that the procedure “poses serious risks to the long-term health of women.” After reviewing all the evidence, the court noted with approval an expert witness’s view that there was no “biological plausibility to this statement” and declared that “it borders on ludicrous to assert that the banned procedure is dangerous” when compared with other abortion procedures and childbirth generally.

In other words, partial-birth abortion is not just a horrible, senseless procedure that has no medical purpose. Instead, it is a valuable procedure that is sometimes the safest procedure for a woman who must, out of medical necessity, terminate a advanced-term pregnancy. In the words of the court: “the congressional record proves the opposite of the congressional findings.”

At this point you should wonder why it didn’t occur to you in the first place that doctors all over the country wouldn’t have been utilizing this procedure if it were in fact senselessly horrific and if obviously safer alternatives existed.

Would Congress’s Ban on Partial-Birth Abortion Reduce the Number of Abortions?

As it turns out, Congress’s ban on the intact D & E procedure would have done nothing to prevent abortions or reduce the number of abortions performed. As we have discussed, women who undergo this procedure typically do so out of medical necessity—not because they simply do not want to bear a child for one reason or another. As such, there would be practically no fewer abortions performed if the banned procedure were not available. The abortions would occur anyway, but the physicians performing the abortions would have no choice but to resort to abortions procedures deemed less safe and more likely to endanger the health of the woman.

Furthermore, the law does allow an intact D & E if it is necessary to save a woman’s life, but if her life could be saved by another type of abortion, even one that gravely threatens her health, an intact D & E becomes a criminal act punishable by jail time for the doctor.

Would Congress’s Ban on Partial-Birth Abortion Promote Women's Health?

Uh, no. Let’s say you are 23 weeks along in your first pregnancy and you discover that your child, whom you’ve already named and whose nursery you’ve prepared, has a medical condition that will not allow him to survive outside the womb. (If you are a guy reading this, imagine the subject of this hypothetical is your wife.)

Your doctor informs you that carrying the child to term poses a very high risk of mortality for you. She tells you that, in her best medical judgment, it will be necessary for you to terminate the pregnancy as soon as possible. She informs you that an intact D & E would be the safest procedure for you, but it is not necessary to save your life. In other words, you’re going to live whether you have an intact D & E or not, but there are additional health consequences attendant to not having an intact D & E. She informs you that the other abortion procedure you can undergo will result in a hysterectomy and you will no longer be able to have children.

If Congress’s ban on the intact D & E procedure is allowed to stand, you will be forced to undergo the worst of the two alternatives. Your physician will face the very real prospect of incarceration if she performs the intact D & E.

Lest there be any doubt that doctors performing intact D & Es would be in imminent danger of prosecution under this law, on the day Bush signed the bill into law, John Ashcroft wrote the Director of the FBI, all U.S. Attorneys, and all FBI Special-Agents-in-Charge and informed them that the “Department of Justice will enforce vigorously the criminal provisions of this Act.”

What the Fuck, Congress?

If Congress were truly acting in good faith, why would it pass a law proscribing only one method for performing mid- to late-term abortions when (1) the law would not actually reduce the number of abortions; (2) the law would proscribe in some circumstances the safest medical alternative for a woman, thereby possibly endangering women in some circumstances; (3) there are other, equally or more gruesome abortion procedures, such as dismemberment abortions, that Congress did not criminalize; and (4) more than a preponderance of the medical testimony received by Congress indicated that the intact D & E procedure was sometimes the safest medical alternative?

According to Judge Richard A. Posner, former chief judge (1993-2000) of the United States Court of Appeals for the 7th Circuit and a shrewdly insightful and well-respected jurist and legal mind, “there is no meaningful difference between the forbidden and the privileged practice. No reason or policy or morality that would allow the one would forbid the other. We should consider therefore why any state would pass such a law.” Indeed we should.

According to Posner, by enacting such laws, abortion opponents in state legislatures and Congress seek to “dramatize the ugliness of abortion.” Abortion opponents, perhaps cleverly, perhaps almost accidentally, discovered an uninformed public quick to oppose “partial-birth abortion,” for when packaged and sold by abortion opponents, the procedure appeared to the public as gratuitously and unnecessarily cruel. Demonstrating the apparent cruelty of this one procedure leads one inexorably to the conclusion that abortion generally is a cruel and inhumane practice, and it tends to provide an argument against the validity of the basic right to abortion, thereby “elevating the public’s concern over the fate of the potential human lives that are exposed to abortion.”

With the issue so presented and having captured the public imagination, so enter our scientifically illiterate, pandering politicians, who no doubt recognized the political danger of voting against something so heinous in the public’s uninformed judgment as “partial-birth abortion.” Political opportunism was plainly weighed against the possible danger to women’s health in this narrow arena, and to no one’s surprise, the former prevailed over the latter.

These statutes, according to Posner, “are not concerned with saving fetuses, with protecting fetuses from a particularly cruel death, with protecting the health of women, with protecting viable fetuses, or with increasing the . . . population . . . . They are concerned with making a statement in the ongoing war for public opinion . . . .” And that’s what it’s all about, folks.


We should all be able to agree that a world with fewer abortions is preferable to one with more abortions. Abortion, particularly those that must occur in the later stages of pregnancy, is undeniably a morbid and ghastly procedure; anyone who holds even a modicum of respect for life (not just human life) should view it with some amount of horror. Yet we live in a world in which killing is so commonplace that respect for life and compassion for living things seems to be slowly and quietly disappearing.

Our species has repeatedly demonstrated a willingness (and, sadly, an eagerness) to enter into conflicts and wars that will necessarily result in mass casualties; we build weapons designed specifically to efficiently kill individuals and vast numbers of people at once; we happily advocate execution of those whom we believe have broken our country's most sacred laws, and we do so despite clear evidence that our criminal-justice system (a human system) is riddled with error and incompetence.

We hunt and kill all manner of animals for sport and we even broadcast these images on sports television networks for all to see and enjoy; the hunters cheer and congratulate each other when, from a comfortable distance away, they shoot and kill an elk or a deer. We destroy forests that are home to countless species of insects, birds, and other life that has doubtless evolved on this planet for thousands or millions of years in exchange for logging or commercial space for a new Wal-Mart.

We sanction the extermination of tens of millions of chickens, pigs, cows, and turkeys every year so we can eat them, not because we require them for our very survival, but because we think they taste good. We all know that myriad homeless dogs and cats are gassed to death at pounds, yet we do nothing to save them.

We live in nice houses, drive expensive cars, own lots of comparatively valueless possessions, and nearly all of us do this every day knowing goddamn good and well that there are millions of children and adults starving and dying of preventable diseases across the globe who need help. In the time it has taken to read this essay, you can be sure that hundreds if not thousands of children in the poorest regions of the world have perished. Is this life not also sacred?

There appears to be so little true compassion remaining in the world. Indeed, we seem to enjoy killing far more than saving; we enjoy violence and destruction far more than kindness. When one does discover evidence of compassion, it appears most often in the form of selective compassion; that is, most often we choose to be compassionate about some causes but illogically ignore others that equally deserve our compassion. This is very obviously the case with abortion.

I find it perplexing how many of those espousing the anti-abortion cause who claim that life is so inherently sacred seem to care so little for the existing life of the mother, or for children who are dying by the millions in other parts of the world, or for the scores of common people of Iraq who have been killed by our country's aggression, or for the millions of animals destroyed for food consumption or sport every day throughout the world. Life is either inherently sacred, or it's not.

Consider for a moment the vast numbers of children born in impoverished areas of the world in the absence of proper health care, medicine, and housing. Unlike children born into privileged circumstances, these children are significantly less likely to survive pregnancy and birth due to an absence of proper nutrition and prenatal medical care, and the infant-mortality rate in third-world countries (which doesn't include miscarriages and spontaneous abortions) is truly alarming.

Similarly, the number of severe birth defects occurring globally each year is staggering, and many of these children either live greatly abbreviated lives (from minutes to days to just a few years) while others are forced to live out their lives in a horribly handicapped state, requiring assistance to eat, walk, and go to the bathroom. How many anti-abortion protesters give a moment's thought to these poor children? More to the point, how many anti-abortion protesters expend their energy and resources trying to save the lives of these children?

I believe laws like the Partial-Birth Abortion Ban Act mark the very worst of selective compassion. Indeed, I view this law and others like it as a complete failure of compassion, and those responsible for it should be brought to task.

The law, in effect, endangers some women who, out of medical necessity, are compelled to terminate a threatened pregnancy that, in many cases, would bring a child into the world for only a brief, difficult existence -- an existence that is difficult not only for the child, but also for her mother, whose anguish for having caused such pain for her child is surely indescribable. The law, which purports to embody compassion for human life, is a despicable fallacy that steals compassion from precisely those persons who, within this context, need it the most: the mother forced to choose between her life and her child's; the mother tortured with the thought of bringing forth a child who will succumb to severe birth defects or live her life only with extraordinary assistance from others; the child who, through no fault of her own, will experience a tragically abridged life, if any life at all.

Ultimately, the Supreme Court, with two new justices hand-picked by the Bush administration, will decide whether the Partial-Birth Abortion Ban Act will stand or fall. I tend to believe that the Court, even with the two new "conservative" justices, will send the law back to Congress with a stinging rebuke in payment for Congress's intentional and ideologically motivated attempt to circumnavigate the Court's direct and unequivocal mandates in regard to the health exception developed in Roe, Casey, and most recently in Stenberg.

We can only hope that the Court views the Act for what it is: an irresponsible, fumbling attempt by Congress, acting as a vehicle for the conservative social and political right, to strike with a blunt instrument at abortion rights generally. One must assume that those responsible for this legislative travesty made the conscious decision somewhere along the way to sacrifice the health of a small number of women -- those for whom an intact D & E would be the safest procedure -- in exchange for gaining political leverage in the ongoing war for public opinion over Abortion.

Monday, April 17, 2006


"Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.

The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest." Justice Sandra Day O'Connor,
Planned Parenthood v. Casey (1992).


This essay serves as a preface to The Scarlet Letter, a multi-part series of articles on abortion that will appear in the coming days and weeks on this Web site. The purpose of this modest introduction is to frame the context of the debate and to make sense of all that has happened legislatively and judicially since Roe v. Wade, the Supreme Court's landmark decision extending constitutional protection to abortion. I have attempted to be as concise as possible without omitting critical details that are necessary for an adequate understanding of the subject.

I. Roe v. Wade (1973)

Texas enacted a statute criminalizing abortion in 1854, revised it in 1857, and as of 1970 it remained on the books substantially unchanged since that first revision. The law made it a crime to "procure an abortion" unless the woman seeking the abortion literally was going to die without one. Article 1196 of the statute read: "Nothing in this chapter applies to an abortion procured . . . for the purpose of saving the life of the mother." This came to be known as the "life exception."

The Texas law provided for imprisonment of "not less than two nor more than five years" for anyone who performed an abortion, but no punishment was provided for a woman undergoing the procedure.

Norma McCorvey (under the pseudonym Jane Roe), a single pregnant woman living in Texas, sued her county district attorney (Henry Wade) in 1970 over the state's abortion laws. She alleged in her complaint that she desired to terminate her pregnancy "under safe, clinical conditions," and that she was unable to get an abortion in Texas because her life did not depend on it. She also alleged that she could not afford to travel to another state that allowed abortions. At the time of the lawsuit, 26 other states had laws criminalizing abortion.

It is worth noting that restrictive abortion laws are of relatively recent history. The legislation in many of the states criminalizing abortion in effect in 1970 was not enacted until the second half of the 19th century. This marked a dramatic shift from English common law, which allowed abortion prior to the first movement of the fetus in utero (usually the 16th to 18th week of pregnancy). Early American law followed common law until approximately the middle of the 19th century.

Part V of the Supreme Court's opinion in Roe summarizes the issue in the case: "The principal thrust of [Roe's] attack on the Texas statutes is that they improperly invade a right, said to be possessed by pregnant women, to choose to terminate her pregnancy."

After setting out a limited history of abortion, the Court turned to the question of whether the Texas abortion law improperly invaded a constitutional privacy right afforded to women under the Due Process Clause contained in the Fourteenth Amendment. The Court determined that the Due Process Clause did in fact protect a woman's decision to terminate her pregnancy, but not without limitation.

The Due Process Clause declares that no state shall "deprive any person of life, liberty, or property, without due process of law." According to Supreme Court decisions dating as far back as 1891, the "liberty" component extends beyond the enumerated freedoms of speech, press, and religion, the right to bear arms, and the right to be free of unreasonable searches and seizures.

Rather, "[t]he full scope of the liberty guaranteed by the Due Process Clause . . . is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgement."

In other words, the Supreme Court has construed the Constitution - by mechanism of the Due Process Clause - to provide a penumbra of liberty rights, and therefore privacy rights, from which necessarily emanate attendant zones of privacy that must be free from government intrusion except when the State can demonstrate a truly compelling justification for limiting these rights.

Laws that encroach upon fundamental liberties are closely scrutinized by courts to ensure that the State's interest is sufficiently compelling to justify abridgement of the liberty rights, and that the laws are carefully tailored so as not encroach upon these rights more than necessary to acheive the State's asserted interest.

Prior to deciding Roe v. Wade, the Supreme Court found constitutional protection under the Due Process Clause for certain privacy concerns relating to marriage, procreation, and contraception, including:
  • a married couple's right to use contraceptives (Griswold v. Connecticut (1965))
  • the right to marry another person of a different race (Loving v. Virginia (1967))
  • an unmarried person's right to obtain and use contraceptives (Eisenstadt v. Baird (1972))
In Eisenstadt, William Baird, who was lecturing at Boston University, was charged with a felony after giving a student vaginal foam in violation of a Massachusetts law that only allowed married couples to obtain contraceptives. The law also provided that contraceptives could only be distributed by a licensed pharmacist.

Holding the Massachusetts law to be unconstitutional, the Supreme Court declared: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

Relying on the privacy rights established in Griswold, Eisenstadt, and Loving, the Supreme Court in Roe held that "[t]he right of privacy . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

The Court noted, however, that this right of privacy is not absolute and must be considered against important State interests, such as protecting the mother's health, maintaining medical standards, and protecting potential life. The Court believed it was "reasonable and appropriate for a State to decide that at some point in time another interest, that of the health of the mother or that of potential human life, becomes significantly involved. The woman's right of privacy is no longer sole and any right of privacy she possesses must be measured accordingly." The critical "point in time" was fetal viability, the point at which the fetus could survive outside the uterus.

Stated another way, the Court's decision in Roe established a constitutional right to terminate a pregnancy (or not), but set limitations on that right, such that it was constitutionally permissible for the State to regulate or even proscribe abortion subsequent to fetal viability provided the State allowed an exception for abortions necessary to preserve the life or the health of the mother.

Roe also set up a trimester framework, such that different rules applied to each trimester of pregnancy, but a subsequent case, Planned Parenthood v. Casey, eliminated the trimester system while also re-establishing the fundmental right to abortion established in Roe.

II. Planned Parenthood v. Casey (1992)

"Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, that definition of liberty is still questioned." Justice Sandra Day O'Connor, Planned Parenthood v. Casey (1992).

At issue in Casey were certain provisions of the Pennsylvania Abortion Control Act of 1982. The Act required a woman seeking an abortion to give her "informed consent" prior to the procedure and mandated a 24-hour waiting period before the abortion could be performed. The law also required a married woman seeking an abortion to sign a statement indicating she had notified her husband that she was going to have an abortion. A plurality of justices of the Supreme Court took the opportunity to reaffirm the central holding of Roe v. Wade.

(Editor's note: The Supreme Court decisions in Roe and Casey were not, of course, unanimous. Indeed, the Court's numerous concurring and dissenting opinions in Casey indicate that the members of the Court were able to agree on very little. Nonetheless, a sufficient number of justices concurred that the basic holding of Roe v. Wade should be upheld. A future post will describe in more detail the critical importance of the Court's division on such issues and how this division is likely to play out as today's abortion cases reach the newly constituted Supreme Court.)

Unlike the Court in Roe, the authors of the plurality opinion in Casey did a remarkable job articulating a legal and logical basis for the extension of constitutional protection to a woman seeking an abortion.

Here are a few of the notable passages:
  • "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment."

  • "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."

  • "The mother who carries a child to full term is subject to anxieties, to physical restraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture."

  • "[T]he inability to provide for the nurture and care of the infant is a cruelty to the child and an aguish to the parent."

  • "The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives."

  • "Compelled continuation of a pregnancy infringes upon a woman's right to bodily integrity by imposing substantial physical intrusions and significant risks of physical harm. During pregnancy, women experience dramatic physical changes and a wide range of health consequences. Labor and delivery pose additional health risks and physical demands. In short, restrictive abortion laws force women to endure physical invasions far more substantial than those this Court has held to violate the constitutional principle of bodily integrity in other contexts."

  • "By restricting the right to terminate pregnancies, the State conscripts women's bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course."

  • "Because motherhood has a dramatic impact on a woman's educational prospects, employment opportunities, and self-determination, restrictive abortion laws deprive her of basic control over her life."

  • "Serious questions arise . . . when a State attempts to persuade the woman to choose childbirth over abortion. Decisional autonomy must limit the State's power to inject into a woman's most personal deliberations its own views of what is best. The State may promote its preferences by funding childbirth, by creating and maintaining alternatives to abortion, and by espousing the virtues of family; but it must respect the individual's freedom to make such judgments."
Attempting to balance the competing interests at stake, the Court reaffirmed Roe and held that prior to viability, a woman has the right to choose to terminate her pregnancy. Rejecting the trimester framework from Roe, and recognizing the State's interest in the mother's health and the potential life of the fetus, the Court articulated the following standard: "Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of liberty protected by the Due Process Clause."

The undue-burden standard was, according to the Court, "shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

The Court also held that the State may, to further its interest in potential life, pass laws to ensure that the woman's choice is "fully informed," and that the State may require abortion providers to give "truthful, nonmisleading information" about abortion to a woman seeking to terminate her pregnancy "even when in so doing the State expresses a preference for childbirth over abortion."

The Court employed the "undue burden" standard and the "fully informed" guidelines to assess the constitutionality of the Pennsylvania laws under consideration. The Court found the 24-hour pre-abortion waiting period mandated by Pennsylvania law not to constitute a "substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus," stating "[t]he idea that important decisions will be more informed and deliberate if they follow some period of reflection does not strike us as unreasonable . . . ."

Thereafter, the Court determined that the spousal-notification provision did constitute a "substantial obstacle" due in large part to the Court's belief that this provision could frequently result in physical or psychological abuse against the woman or her children, thereby creating an undue burden for some women.

Sensibly, the Court stated: "In well-functioning marriages, spouses discuss important decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decisions to obtain an abortion."

Casey was the Supreme Court's last word on whether there exists a basic constitutional right to abortion, although there have been other cases addressing rights tangential to abortion rights that have reached the Court and the numerous federal courts, such as the cases involving "partial-birth abortion." Although the fundamental right to terminate one's pregnancy remains, the trend among many states and the federal government has been to chip away at this right by enacting laws that arguably do not constitute an "undue burden" on a woman seeking an abortion, but nonetheless create an increasingly unfavorable environment for doing so.

III. Additional Thoughts

What I have attempted to summarize herein - the central holdings of Roe and Casey - amount to gross simplifications that fail to truly capture the greatest part of the Court's analysis and the constitutional intricacies of each case. As a printed document on 8.5" x 11" paper, Roe is 29 pages in length, while Casey spans 79 pages. Each case references numerous prior cases of precedential value, each containing many relevant points of law, all of which must be read before an adequate understanding of the constitutional issues emerge in their full complexity.

Furthermore, the arguments set forth by the justices both for and against the extension of constitutional protection to abortion are, for the most part, thoughtful and intelligent, such that only multiple careful readings of these cases, along with a detailed understanding of constitutional law, will illuminate the arguments' full depth and meaning. One could no more read through these cases only once and truly grasp the profound messages and considerations therein than one could listen to a Chopin nocturne or ballade a single time and comprehend the depth of the musical fabric one has heard.

Additionally, it should be apparent to anyone who takes the time to read these opinions that each of the justices who contributed their thoughts to this great debate did so with no small amount of trepidation and anguish over having to decide such a fundamental question of life and liberty. Such is not an enviable task, and the justices took great care in writing these opinions.

If nothing else is certain, it is undeniable that the abortion question with respect to the application of the laws of this country and the states it comprises is profoundly complex and lies at the very core of the way we view and define ourselves and our understanding of life. Contrary arguments suggesting the issue is capable of a simple, black-and-white resolution are fallacious.

Those who claim that abortion is wrong in every instance are plainly foolish, for there are certainly instances in which not even the mother wishes to terminate her pregnancy, but an abortion is a medical necessity to save her life. And those who claim that abortion is murder face a logical dilemma when they make exceptions for abortions that are the product of rape or incest, because they suggest that there are certain considerations that can prevail over the sanctity of life.

Likewise, anyone who claims that a woman's right to terminate her pregnancy should be inviolable at any stage of the pregnancy also wrongly apprehend the value of a potential human life, something that undeniably has worth and should, in our marginally civilized society, be accorded some level of respect, as should all life, whether human or not.

Indeed, it seems inescapable that, in the absence of clear absolutes, a balancing must take place that necessarily sacrifices definite and immutable moral ideals for more practical ones. Such is the complexity of life.

However, this does not mean that all approaches to this problem are of equal merit. On the contrary, as in any dispute, arguments supported by logic and pragmatism should be rewarded and favored, whereas arguments based merely on vaguely defined moral imperatives that result in untenable inconsistencies should be disfavored. Yet, make no mistake: I am not advocating a complete abandonment of morality in favor of pure logic, although life would surely be more tolerable if that were the case. I merely recognize that, while morality is perhaps often articulated in aggregate (such as the tenet of a major religion, for example), it is entirely personal and need not be based upon historical religious texts to be valid, provide meaning to its holder, and improve society through its implementation.

It is on this basis that I intend to address the various issues, arguments, and controversies surrounding this terribly divisive issue - abortion - for the purpose of seeing into the heart of the logical and moral constructs that support the arguments, such that each, whether fallacious or sound, can be seen for what they truly are.