In June, certain anti-abortion activists bought full-page newspaper ads featuring an "open letter" criticizing James Dobson, founder of Focus on the Family, for his "approval" of the Supreme Court's April 18 decision in Gonzales v. Carhart, which upheld the constitutionality of the federal Partial-Birth Abortion Ban Act (PBABA) of 2003. The crux of the criticism seems to be that the Gonzales decision was "brutally wicked," because the Court didn't prohibit all abortions (or at least D&E abortions). The impact of the "open letter" was multiplied by newspaper reports about the letter in the Washington Post on June 5 and the Los Angeles Times on June 6.
The letter's criticism of Dobson (and other organizations) for publicly supporting the Court's decision contained innumerable misstatements, including misunderstandings about the proper role of the Supreme Court, how the Supreme Court operates, why the PBABA was written, the limits of the PBABA, the Court's abortion doctrine, the records of Justices Scalia and Thomas, the language of the Gonzales opinion, and the future implications of the Court's decision. Since the "open letter" was published for millions to read, its numerous misstatements deserve a public correction.
The PBABA served several purposes, some of which were fulfilled only with the Gonzales decision. First, by highlighting a particular form of abortion, the PBABA brought national public attention to the gruesomeness of abortion more than all previous educational efforts (as a recent study by Overbrook Research and previous polling data suggest). second, by drawing a comparison, it showed the cruelty of partial-birth abortion (PBA) and D&E abortions, as even the pro-abortion justices implicitly conceded. Third, the Act served as a legal fence between abortion and infanticide, to keep the abortion license from expanding into out-and-out infanticide. (Though the Roe decision drew the constitutional line between abortion and infanticide at birth, Roe did nothing to prevent abortionists from erasing that line through new methods or technology.) Fourth, the Act and the debate surrounding it helped the public better understand the true scope of Roe-that Roe did not legalize abortion simply in the "first trimester," but up to birth. Fifth, the Act served as a vehicle to prompt a landmark Supreme Court decision gutting (if not explicitly overruling) the Court's terrible decision in 2000 in Stenberg v. Carhart. Other benefits of the Act could be identified.
In their criticism, the authors of the "open letter" are misguided in several important ways.
First, the critics do not understand why the Act was written with the limits it has. The bill was originally written against the severe constraints of the Court's pro-abortion precedents, a five-justice pro-abortion majority (Justices Breyer, Ginsburg, Stevens, Souter, and O'Connor), and the Court's Stenberg decision of 2000. The pro-abortion majority of justices had declared an almost absolute "right" to abortion from conception to birth, and had previously struck down legislative attempts to prohibit another type of abortion. While precluding any prohibitions between conception and birth, the pro-abortion justices left Congress and the states only minimal room to enact regulations (not prohibitions) in the margins around the abortion license. After prohibitions on PBA were enacted in 30 states, the pro-abortion majority struck down all of those state laws in Stenberg, further raising the obstacles to any state or federal abortion regulations. Sponsors in Congress then redrafted the Act more narrowly to fit within the constraints of Stenberg while continuing the public debate.
To accomplish the limited but significant goals of the Act under severe constraints, the Act had to define the difference between partial-birth abortion and D&E abortion (which the pro-abortion majority in 2000 supported). The exceptions or limits in the bill were not the preference of the congressional sponsors but were compelled by the pro-abortion Supreme Court majority of Breyer, Souter, Stevens, Ginsburg, and O'Connor. …