Stop the Tyrants Part II

Chapter 3: Integrity Down the Drain

The Majority's Willful Misconduct

In Chapter 3

  1. Three High Crimes for the Price of One
  2. Abusing the Rule of Lenity
  3. Deciding an Unnecessary Question
  4. Is the term "Partial-Birth Abortion" Vague?
  5. Destroying Constitutional Avoidance
  6. Yet Another Falsehood: Partial-Birth Abortion is Safe!
  7. Overruling Casey while Claiming to Uphold it
  8. Extending Roe while Pretending to do Otherwise
  9. What the Hell is Going On?

§A   Three High Crimes for the Price of One

You may be wondering why the death-by-dismemberment procedure is at issue in this case at all. It is an issue in this case because the Stenberg majority made it an issue. They did so by claiming that Nebraska's ban on partial-birth abortion would also ban the late term D&E. The majority claimed this presented a constitutional problem because banning the D&E would ban the most commonly used method of second-trimester abortion.

The Stenberg majority justifies this claim by saying that the D&E also involves partially delivering a living unborn child. This assertion is sheer nonsense! You don't deliver a child by dissecting him! Both Justice Thomas and Justice Kennedy make this perfectly clear in their rebuttals of this argument:

Thomas rebuttal:

The Nebraska statute applies only if the physician "partially delivers vaginally a living unborn child"... When read in context, the term "partially delivers" cannot be fairly interpreted to include removing pieces of an unborn child from the uterus one at a time.
The word "deliver," particularly delivery of an "unborn child," refers to the process of "assist[ing] in giving birth," which suggests removing an intact child from the womb... Without question, one does not "deliver" a child when one removes the child from the uterus piece by piece, as in D&E. ... The majority cites sources using the terms "deliver" and "delivery" to refer to removal of the fetus and the placenta during birth. But these sources also presume an intact fetus... The majority has pointed to no source in which "delivery" is used to refer to removal of first a fetal arm, then a leg, then the torso, etc. In fact, even the majority describes the D&E procedure without using the word "deliver" to refer to the removal of fetal tissue from the uterus... No one, including the majority, understands the act of pulling off a part of a fetus to be a "delivery." [Thomas dissent: Pages 12 - 13, second emphasis added]

Kennedy rebuttal:

The law is most naturally read to require the death of the fetus to take place in two steps: First the fetus must be partially delivered into the vagina and then the defendant must perform a death-causing procedure.
The majority rejects this argument based on its conclusion that the word "procedure" must refer to an entire abortion procedure each time it is used. This interpretation makes no sense. It would require us to conclude that the Nebraska Legislature considered the "entire abortion procedure" to take place after the abortionist has already delivered into the vagina a living unborn child, or a substantial portion thereof. All medical authorities agree, however, that the entire abortion procedure begins several days before this stage, with the dilation of the cervix. The majority asks us, in effect, to replace the words, "for the purpose of performing" with the words, "in the course of performing." The reference to "procedure" refers to the separate death-causing procedure that is unique to the D&X. [Kennedy dissent: Page 21]

Both rebuttals make it quite clear that the majority has committed two acts of deliberate misconduct which, in fact, constitute three judicial "high crimes": They have lied about the possible meaning of the phrase "delivery of an unborn child." They have thus lied about the facts of the case before them. And they have deliberately misread Nebraska's law. That's another lie about the facts of the case; it also violates the important judicial principle that laws are to be read according to their plain meaning! Such willful misbehavior is grounds for impeachment and removal from office. But wait, there's still more -- a lot more.

See the Chapter 3 Table of Contents.

The Stop the Tyrants Project [page 13]: Chapter 3 (Section A)
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