Behind all the conservative rhetoric, it can easily be argued that Republican presidents have done more harm than good when it comes to abortion. Outside President George W. Bush, the history of conservative leadership in the promotion of pro-life values is lackluster at best. For example, in Roe v. Wade, the Supreme Court effectively overturned the laws of forty-six states, and ruled that the right of a woman to terminate the life of her unborn child was in fact a right embedded (somewhere) in the Constitution. The Roe decision is at the forefront of the “pro-choice” movement, and its outcome exemplifies the epitome of judicial activism.

At the time Roe was decided in 1973, the Court consisted of six Justices that were nominated by GOP presidents and three Justices who were nominated by Democrats. However, Roe was decided with an unwavering 7-2 majority. Thus, Roe established precedent for Republican presidents to nominate Supreme Court Justices that would unabashedly distort the text of the Constitution in order to uphold abortion as a substantive due process right. This precedent continued unabated through the terms of GOP Presidents Ford, Reagan, and Bush Sr. From 1975 to 1992, these “conservative” Presidents nominated some of the staunchest proponents of abortion: Justices Stevens, O’Connor, and Souter.

It wasn’t until 2005, when President George. W. Bush was elected to his second term in office that this liberal trend ceased. During his tenure, President Bush selected John Roberts to be the Court’s new Chief Justice, and Samuel Alito to be the eighth Associate Justice. President Bush broke from his predecessors and nominated Justices that were traditional conservatives, and had a proven record of upholding both the text of the Constitution and the integrity of State’s rights. In Gonzales v. Carhart, the very essence of Bush’s new conservative wing was tested as it was confronted with the issue of partial birth abortion.

In 2003, President Bush upheld his electoral promise and signed the Partial-Birth Abortion Ban Act into law. The Act prohibits a specific medical technique that ends fetal life during the later stages of pregnancy: intact dilation and extraction (D&E). During this gruesome procedure, a doctor dilates a woman’s cervix, extracts the fetus in such a manner that its entire body is intact, and then simply kills the partially born child. According to one nurse who witnessed an intact D&E, and who testified before the Senate Judiciary Committee:

[The doctor] went in with forceps and grabbed the
baby’s legs and pulled them down into the birth
canal. Then he delivered the baby’s body and the
arms -- everything but the head. The doctor kept the
head right 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, like a
flinch, like a baby does when he thinks he is going
to fall . . . . 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 . . . .

Of course, Planned Parenthood Federation, inter alia, brought suit in federal court arguing that intact D&E is not only an acceptable “procedure,” but also that it is constitutionally protected. On April 18, 2007, Justice Kennedy authored the Carhart opinion on behalf of the 5-4 conservative majority, and ruled that the Partial-Birth Abortion Ban was in fact constitutional.

Justice Kennedy wrote that “D&E is a procedure itself laden with the power to devalue human life,” and the United States government “has a legitimate and substantial interest in preserving and promoting fetal life.” Justice Kennedy also quoted congressional findings which concluded that D&E had a “disturbing similarity to the killing of a newborn infant.” The majority opinion in Carhart discarded Planned Parenthood's disingenuous arguments, and reinforced Congress’ goal to prohibit this brutal form of infanticide.

The Carhart decision is in fact a monumental victory for conservatives because it is the first case to uphold a federal ban on a specific type of abortion procedure since the Court’s horrific decision in Roe. However, it must be emphasized that Carhart is only a limited victory. There are approximately 1.3 million abortions performed each year in the United States, and approximately ninety percent of those abortions are performed in a manner outside the scope of the 2003 Partial-Birth Abortion Ban. Moreover, the Carhart outcome consisted of a concurring opinion written by Justice Thomas, in which he stated that “the Court’s abortion jurisprudence, including Casey and Roe, has no basis in the Constitution.” Yet, only Justice Scalia joined Justice Thomas’ opinion, thus indicating that the new conservative wing of the Court was not ready to overturn thirty-four years of ill-conceived and constitutionally unfounded precedent.

Although Carhart is only a limited victory, conservatives should be emboldened by its outcome because it represents a moment in history in which the life of an innocent unborn child is both protected from death and respected by law. President George W. Bush has done his part in establishing a new standard for Supreme Court nominees, and now we must make certain that no GOP president strays from this judicial benchmark. The pro-life endeavor is a difficult one, and conservatives must continue to strive to ensure that all human life is safe from brutal and needless destruction.

Steven Duke Laser holds a Juris Doctorate from the University of Akron School of Law, in Akron, Ohio, and a Bachelors degree in Political Science with a minor in International Studies from The Ohio State University in Columbus, Ohio. Steven has also written extensively on issues regarding consular law and practice, the Establishment Clause, and the Due Process Clause.