EWTN's "The World Over" to Analyze Partial-Birth Abortion Decision
Mrs. Long explained that Catholics do not have a problem being faithful to both the United States Constitution and their religion and posed a still pertinent question as the title of her memo: "Are Senate Democrats Anti-Catholic Bigots?"
Time: Friday, April 27, 2007, 8 P.M. EST
Network: EWTN (Eternal Word Television Network)
Program: "The World Over"
Host: EWTN News Director Raymond Arroyo
Topic: Supreme Court's recent decision to uphold the ban on partial-birth abortion
Guests: Robert Bork, former Supreme Court nominee, and Wendy Long, legal counsel at the Judicial Confirmation Network
On April 18, 2007, the United States Supreme Court , 5 to 4, rejected challenges to the constitutionality of the Partial-Birth Abortion Ban Act, passed by Congress and signed by President George W. Bush in 2003.
The Act prohibits a doctor from performing a partial birth abortion unless the pregnant woman's life is in danger.
In performing a partial-birth abortion (also know as intact dilation and evacuation), an abortionist dilates a mother's cervix, extracts the baby's body by the feet until all but the head has emerged, stabs scissors into the head, sucks out the baby's brains, collapses the baby's skull, and delivers the dead baby.
Even the dissenting opinion described this "medical procedure" as "brutal" (while insisting that it is not more brutal than nonintact dilation and evacuation).
President Bush welcomed the decision:
"I am pleased that the Supreme Court upheld a law that prohibits the abhorrent procedure of partial-birth abortion. Today's decision affirms that the Constitution does not stand in the way of the people's representatives enacting laws reflecting the compassion and humanity of America. The partial-birth abortion ban, which an overwhelming bipartisan majority in Congress passed and I signed into law, represents a commitment to building a culture of life in America.
"The Supreme Court's decision is an affirmation of the progress we have made over the past six years in protecting human dignity and upholding the sanctity of life. We will continue to work for the day when every child is welcomed in life and protected in law."
But others, including comedienne Rosie O'Donnell and University of Chicago Law Professor Geoffrey Stone, charged that Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito, Catholics all, had violated so-called "separation of church and state" and imposed a personal religious belief upon America.
"What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is 'immoral' and may be prohibited even without a clear statutory exception to protect the health of the woman.
"By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental."
Judge Bork and Mrs. Long understand that the limited function of justice and judges is fundamental under the United States Constitution.
Mrs. Long's Judicial Confirmation Network puts it this way:
"We believe that the proper role of a judge or justice is to interpret the law and the Constitution – not make up the law and deprive [we] the people of the right to govern ourselves.
"We believe that a judge or a justice should not use the power of the court to impose his or her personal or political agenda on the people."
Mrs. Long deftly dismissed the ridiculous rants of frustrated pro-abortion advocates by focusing on what partial-birth abortion (aka intact dilation and extraction) involves: "Did anyone seriously think that the Constitution requires us to let abortionists vacuum the brains of late-term unborn children out of their skulls? What is remarkable is not the Court's holding today, but the fact that anyone would think such a barbaric procedure, opposed by overwhelming majorities of Americans, is something the Constitution puts off limits for the people to decide through their elected representatives."
In a July 26, 2005 Bench Memo posted at National Review Online, Mrs. Long explained that Catholics do not have a problem being faithful to both the United States Constitution and their religion and posed a still pertinent question as the title of her memo: "Are Senate Democrats Anti-Catholic Bigots?"
"...Liberal pressure groups and Democratic senators...have long sought to impose a litmus test for federal judges, and especially Supreme Court justices. Men and women of Christian, particularly Catholic, faith need not apply.
"Let’s put aside the fact—and it is a fact—that no one can conjure up even a hypothetical scenario under which the United States Constitution contravenes the teaching of the Catholic Church. It has not happened yet in our country’s history, and it’s not going to happen in the future."
Mrs. Long even explained why: "[J]udges cannot make policy—pro-Catholic, anti-Catholic, or otherwise....Judges can’t make the laws governing abortion, marriage, or anything else. All they can do is apply them. Accordingly, ...a Supreme Court justice’s personal, political, or religious views cannot be used as the basis to decide a case."
The ones who are NOT faithful to the Constitution are the ones who twist it to suit their own agenda.
As Mrs. Long wrote:
"The religious inquisition...is really a smokescreen for the liberal litmus test about issues like abortion and same-sex marriage. Along with Senators Kennedy, Kerry, Schumer, and others, Senator Durbin treats judges like policymakers who wear black robes and are appointed for life. Like all liberals, they fundamentally misapprehend the role of the judge under our Constitution: to be a neutral umpire, applying the laws as written by the elected representatives of the people.
"Because liberals can’t win popular support for their policy agenda—things like mandating abortion on demand for any reason through all nine months of pregnancy, forcing states to redefine marriage, and erasing God permanently and completely from the public square—they force it on people through the courts. And they are afraid that Justices who are people of religious faith can’t be pressured into ruling from the bench in favor of their liberal policies."
The recent attacks on the Justices who voted to uphold the constitutionality of the federal partial-birth abortion ban are more pressure from frustrated judicial activists who fear that judicial activists coups will be undone.
The majority opinion in Gonzales is faithful to the Constitution as well as respectful of Congressional prerogatives, not an arbitrary imposition of Catholic teaching.
Roe v. Wade, which proclaimed a constitutional right to abortion, and Everson v. Board of Education, which read the First Amendment as "erect[ing] a wall between church and state" that "must be kept high and impregnable," are examples of judicial activist legislating from the bench that judicial activists fear (hopefully correctly) are in peril of being corrected.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.