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Does the Syracuse
Care about Facts?
Judge for yourself…
On July 2, 2000, the Syracuse Herald American ran an editorial entitled “The Right to Choose,” praising the Supreme Court’s June 28, 2000, decision in Stenberg v. Carhart. There, the Court ruled that Nebraska’s ban on “partial-birth” abortions violated the Constitution.
I happened to be visiting upstate New York and—as an attorney and author of an academic book on abortion—was curious to discover what the Herald American’s perspective was on the decision. I was appalled at what I read. It is not simply that the editorial was slanted, or that I oppose partial-birth abortion and disagree with the Supreme Court’s decision in Carhart. The Herald American’s editorial was rife with factual errors—errors that betray a fundamental misunderstanding of the most basic law and facts surrounding abortion.
Thinking that the errors in the editorial might simply be the result of ignorance or “deadline pressure,” I wrote a letter to the editor pointing out the errors in the article. (Unlike the editorial, I identified support for my positions.) The paper refused to print the letter or to correct the factual errors in its editorial.
While I have become accustomed to a certain amount of media bias, I have seldom witnessed such palpable disregard for the truth. Whatever your position on abortion, the Herald American’s approach toward facts should be reason for concern.
Here is a partial list of the errors in the article. (Where possible, I have linked to the authorities that I cite. I invite you to examine them for yourselves.)
1. The editorial states, “This decision [Carhart] was not about late-term abortions. In fact, the doctor who challenged the law does not perform them.” This is untrue. In his dissent to Carhart, Justice Kennedy notes, “The person challenging Nebraska’s law is Dr. Leroy Carhart…. He performs abortions throughout pregnancy, including when he is unsure whether the fetus is viable…. Dr. Carhart performs the partial-birth abortion procedure (D&X) that Nebraska seeks to ban. He also performs the other method of abortion at issue in the case, the D&E.”
2. The editorial states, “Roe v. Wade only allows abortions up until the time that a fetus can survive outside of the womb. After that, there must be specific circumstances to allow the termination of a pregnancy.” This is incorrect. While Roe held that a state sometimes had the option to protect the unborn in the third trimester—and only then—neither Roe nor any of the Supreme Court’s subsequent abortion cases hold that a state must limit third-trimester abortions. If a state is so inclined, it can allow abortion at any time during pregnancy, for any reason. Some states presently do so. Furthermore, Roe v. Wade held that, even where a state was inclined to limit abortion in the third trimester, the state had to allow exceptions for the health or life of the mother. The “health” exception is huge. The Court held in Doe v. Bolton that the “health” exception embraces “all factors–physical, emotional, psychological, familial, and the woman’s age–relevant to the well being of the patient.” Thus, abortionists in states with late-term restrictions frequently invoke the health exception by saying that a late-term woman would be at risk for depression if she could not have an abortion.
3. The editorial states, “There is no such thing as ‘partial-birth abortion.’” This is untrue. As Justice Thomas points out in his dissent to Carhart, “The Court of Appeals acknowledged that the term “is commonly understood to refer to a particular procedure known as intact dilation and extraction….” The American Medical Association—which is generally pro-abortion, but supported Nebraska’s ban on partial-birth abortion—agrees. Justice Thomas notes that a factsheet that the AMA submitted in the case states, “The partial birth abortion legislation by its very name aimed exclusively at a procedure by which a living fetus is intentionally and deliberately given partial birth and delivered for the purpose of killing it.”
Furthermore, even assuming the phrase “partial-birth abortion” had no meaning in common, ordinary language, that would be irrelevant. As any lawyer knows, when interpreting the language of a statute, the common, ordinary definition of a term controls only where the term is not defined in the statute itself. (In fact, the majority opinion in Carhart itself states, “When a statute includes an explicit definition, we must follow that definition, even if it varies from the term’s ordinary meaning.”) Significantly, the Nebraska legislation banning “partial-birth abortions” defined precisely what it meant by that term: “an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.” The legislation also defined what it meant by “partially delivering” the child. (Both definitions, incidentally, are quoted in full in the Court’s opinion in Carhart.) To prosecute an abortionist under the law, the state would have had to prove beyond a reasonable doubt that he or she partially delivered a living child, that the abortionist deliberately delivered the child part-way into the birth-canal for purposes of the abortion, and that the abortionist knowingly killed the child. The Supreme Court struck down this seemingly moderate prohibition as an unwarrantable intrusion on women’s right to “liberty” under the Fourteenth Amendment.
4. The editorial states, “Healthy fetuses are not being aborted in the eighth month of pregnancy…. When a woman seeks an abortion late in a pregnancy, it’s because something has gone horribly wrong.” This is demonstrably incorrect. Consider Martin Haskell and James McMahon, the two doctors credited with independently developing the partial-birth abortion technique. The November 20, 1995, issue of American Medical News (the official paper of the AMA), reported that Haskell conceded that 80% of his late-term abortions were elective. (Diane M. Gianelli, "Outlawing Abortion Method," American Medical News, 20 November 1995: 3.) As for McMahon, the same American Medical News article reported that, of the late-term abortions he indicated were not elective, McMahon most frequently identified “depression” as the reason for performing an abortion where the mother’s health was at issue, and “cleft lip” as the reason where the baby’s health was at issue.
Similarly, on February 26, 1997, the New York Times reported on a startling admission by Ron Fitzsimmons, the executive director for the National Coalition of Abortion Providers. (David Stout, "An Abortion Rights Advocate Says He Lied about Procedure," New York Times 26 February 1997: A-12.) Fitzsimmons admitted that, in an appearance on Nightline, he “lied through [his] teeth” when he said that partial-birth abortion was used only when women lives were at issue or their babies damaged. The Times wrote, “In the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along, Mr. Fitzsimmons said. ‘The abortion-rights folks know it, the anti-abortion folks know it, and so, probably, does everyone else….’” (Everyone, that is, except one person writing editorials for the Herald American.)
The late C.P. Scott, editor of the Manchester Guardian, once gave his fellow journalists some very wise advice: “The newspaper is something of a monopoly,” he explained, “and its first duty is to shun the temptations of a monopoly. Its primary office is the gathering of news. At the peril of its soul it must see that the supply is not tainted…. Comment is free, but facts are sacred.”
It’s a pity that the Herald American doesn’t have a C.P. Scott on its editorial board.
Author of The House of Atreus: Abortion as a Human Rights Issue (Praeger Publishers, 1999)
July 15, 2000