AG Nominee Defending Partial-Birth Abortion: 'The Phrase "Living Fetus"' is 'Hopelessly Vague'

By Terence P. Jeffrey | April 21, 2015 | 11:52 AM EDT

Attorney General nominee Loretta Lynch (AP Photo/J. Scott Applewhite)

(CNSNews.com) - Attorney General nominee Loretta Lynch joined a group of former U.S. attorneys in signing an amicus brief presented to the Supreme Court in 2006 in the case of Gonzales v. Carhart that argued that the federal ban on partial-birth abortion was unconstitutional because its language was too vague.

In their brief, for example, Lynch and the other former U.S. attorneys argued that the term “living fetus” was too vague to be understood by those responsible for following and enforcing the law.

Congress enacted the Partial-Birth Abortion Ban Act in 2003 with broad bipartisan support. Senators Joe Biden of Delaware, Harry Reid of Nevada, and Patrick Leahy of Vermont all voted for it.

The law defined a partial-birth abortion as follows: “(1) the term partial-birth abortion means an abortion in which the person performing the abortion (A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.”

In the amicus she signed, Lynch and her fellow former U.S. attorneys argued that this definition did not provide sufficient “clarity” as to what it prohibited.

“The statute purports to prohibit all abortions where the doctor ‘deliberately and intentionally vaginally delivers a living fetus’ up until a point on the fetus ‘for the purpose of performing an overt act that the person knows will kill the partially delivered fetus’ and ‘perform[s] the overt act, other than completion of delivery,’” said the amicus brief. “But, this definition fails to provide any clarity as to what procedures are prohibited, and thus fails constitutional due process requirements.”

For example, the former U.S. attorneys argued, the term “living fetus” was "hopelessly vague." They stated to the court:

Furthermore, the Ban's specific provisions, such as the phrase "living fetus," are hopelessly vague as a legal proscription. Planned Parenthood Fed'n of Am. v. Ashcroft, 320 F. Supp. 2d at 1183-84. As many courts have recognized in considering similar language, "reasonable physicians differ as to the meaning of what is 'living."' Planned Parenthood of S. Ariz. v. Woods, 982 F. Supp. 1369, 1379 (D. Ariz. 1997). Indeed, courts almost universally have found that the term "living fetus" is unconstitutionally vague. See Farmer, 220 F.3d at 136-37 (finding "living human fetus" to be vague); Richmond Med. Ctr.for Women v. Gilmore, 55 F. Supp. 2d441, 496 (E.D. Va. 1999)(same), aff'd, 224F.3d 337 (4th Cir. 2000) (on undue burden grounds); A Choice for Women v. Butterworth, 54 F. Supp. 2d 1148, 1158 (S.D. Fla. 1998) (same). It is unclear whether a "living fetus" must be intact, Miller, 30 F. Supp. 2d at 1165 ("[i]t is not clear whether 'living fetus' refers only to an intact fetus with a heartbeat or some other form of 'life,' or to a disarticulated fetus with a heartbeat or some other sign of 'life"'), or whether "living" is defined by some other criterion, compare Woods, 982 F. Supp. at 1379 (questioning whether a "living fetus" is simply a collection of living cells) with Planned Parenthood Fed'n of America v. Ashcroft, 320 F. Supp. 2d at 971 (defining living fetus as "pulsing umbilical cord" or heartbeat). A physician or prosecutor could not possibly know whether a given "overt act" "kill"-ed the fetus under the Ban without having a clear definition of what made it "living." See Richmond Med. Ctr.for Women, 55 F. Supp. 2d at 496; Woods, 982 F. Supp. at 1379. For these reasons too, the statute is plainly unconstitutional.

In a 5-4 decision, the Supreme Court rejected the argument that the language in the Partial Birth Abortion Ban was too vague. Writing for the court, Justice Anthony Kennedy said: “The act is not vague.”

In his opinion, Kennedy quoted a doctor's clinical description of a partial-birth abortion. He also quoted a nurse's description of a partial-birth abortion which the nurse witnessed. The nurse's description--as quoted in the Supreme Court opinion--said:

“Dr. Haskell 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. ...

"He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.”

At Lynch’s confirmation hearing on Jan. 28, Republican Sen. Lindsey Graham of South Carolina asked Lynch about the amicus brief she had signed arguing against the partial-birth abortion ban.

"In 2006, you signed an amicus brief supporting Planned Parenthood's opposition to partial-birth abortion ban; is that correct?" Graham said.

"Yes," said Lynch, "I was one of a number of former Department of Justice officials [who signed it]. Although, the amicus brief that we signed was focused on the issue of the facial issues of the law, and how it might impact the perception of law enforcement's discretion and independence," she said.

"The only reason I mentioned that," said Graham, "is that if there's a Republican president in the future, an attorney general nominee takes an opposite view on an issue like abortion, I hope our friends on the other side will acknowledge it's OK to be an advocate for a cause, as their lawyer. That doesn't disqualify you from serving."