It’s How They Say It

ve8QAd   |   August 27, 2021

Last week the Fifth Circuit Court of Appeals handed the pro-life movement a significant victory by upholding a Texas law protecting the state’s unborn babies and their mothers. The legislation referred to as SB8 stops live-dismemberment abortion, a particularly brutal and gruesome act.

While this victory is of enormous importance, there was an added gift tucked within the pages of the majority opinion authored by Judges Jennifer Walker Elrod and Don R Willet.

Words have meaning, and when used effectively, they pack a powerful punch in the defense of life while exposing the ugly reality of abortion. Their words remain as a permanent testament of record from one of the highest levels of America’s judicial ranks.

The plaintiffs in this case included six abortion facilities, along with five abortionists, all defending an industry that generates lucrative late-term abortion income.

The authors begin their majority opinion sharing the Texas Legislature’s definition of live-dismemberment abortion.

[The abortion] dismembers the living unborn child and extracts the unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps, or performs any combination of those actions on, a piece of the unborn child’s body to cut or rip the piece from the body.

The judges went on to write:

Dismemberment D&Es (Dilation and Evacuation) are self-evidently gruesome. It has long been illegal to kill capital prisoners by dismemberment…It is also illegal to dismember living animals…The State urges that SB8 would simply extend the same protection to fetuses.

A Texas plain-speak translation would read something like this. We don’t do that to convicted killers or animals so why should we do it to defenseless babies?

The Court took the abortion industry to task for keeping women in the dark regarding the reality of live-dismemberment abortions and used this opportunity to set the record straight.

What was true in Gonzales is true here. Women who receive live-dismemberment D&Es are not being told what is going to happen to the fetus…For example, Plaintiff Southwestern’s form tells the patient that “the pregnancy tissue will be removed during the procedure” and does not explain that the fetus’s body parts—arms, legs, ribs, skull, and everything else—will be ripped apart and pulled out piece by piece.

In addition to providing their own powerful commentary on abortion, the authors demonstrated that by quoting powerful words from previous court opinions, they give them added life and education to the reader.

Citing the Gonzales US Supreme Court decision on Partial-Birth Abortion, they cast a light on the victimization of women.

It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.

The Fifth Circuit flexed its judicial muscle on behalf of justice and the constitution. And it’s worth noting that the 9-5 outcome split this way: all of the GOP appointed judges who understand their role as interpreters of the legislation upheld the state ban on live-dismemberment abortion. By contrast, all of the judges appointed by Democrat presidents would substitute their politics for the will of the people of Texas.

The appellate court dished out a Texas-style smackdown when it overruled the district court. In summarizing their decision, the authors spelled out the legal shortcomings – there were many – that brought the lower court to a faulty conclusion.

In sum, the district court’s opinion rested on bad law, bad facts, and bad math.

The district court abused its discretion by applying the wrong legal test to assess SB8, dismissing and ignoring the State’s important and substantial interests, placing the burden  of proof on the wrong party, explicitly and erroneously stating that the abortion right is “absolute” and evaluating SB8 under that view, erroneously defining “substantial obstacle,” incorrectly determining that SB8 constitutes a “ban” on D&E abortions, ignoring vast swaths of testimony about suction, making findings about digoxin that contradict the plaintiffs’ own digoxin use and practices, weighing medical uncertainty against the State, and incorrectly determining both the numerator and denominator in the large-fraction analysis (emphasis added).

Our takeaway lessons are this. It’s not only the outcome of the cases before America’s judiciary that matter. The style and passion with which they communicate their findings illuminates and rejuvenates our efforts to end legal abortion in America.

And we advance the cause for life by voting pro-life.

Seeking justice for the babies and their mothers,

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