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The Fifth Vote

Location: Washington, DC

The Fifth Vote
By Congressman Joe Pitts

July 15, 2005

When Supreme Court Justice Sandra Day O'Connor announced her retirement from the Court recently, it set off a firestorm of speculation and posturing over who would replace her. Today's political environment is such that any retirement from the Court would set off such speculation.

However, the debate over Justice O'Connor's successor will be particularly intense because she's the swing vote on the Court. That means her vote frequently swung the court in one direction or the other. Justice O'Connor's fifth vote has become one of the most important in Washington . It also means that her replacement could swing the Court in one direction or the other on critical issues.

In 2000, Justice O'Connor's vote overturned a federal law banning partial birth abortion. Her vote cemented the Supreme Court's nine unelected judges as the only national policy makers on partial birth abortion. This is clearly not what the Constitution mandates.

Nowhere is this danger of judicial lawmaking more evident that with partial birth abortion. This procedure was described in graphic detail by Brenda Pratt Shafer, a nurse with thirteen years of experience who, in 1993 was assigned to an abortion clinic by her nursing agency.

Very "pro-choice" at the time, Ms. Shafer recalls that, "The doctor delivered the baby's body and arms, everything but his little head. The baby's body was moving. His little fingers were clasping together. He was kicking his feet. The doctor took a pair of scissors and inserted them into the back of the baby's head, and the baby's arms jerked out in a flinch, a startle reaction, like a baby does when he thinks that he might fall. Then the doctor opened the scissors up. Then he stuck the high-powered suction tube into the hole and sucked the baby's brains out. Now the baby was completely limp."

Ms. Shafer concluded the story of her first partial birth abortion experience by saying, "I never went back to the clinic. But I am still haunted by the face of that little boy. It was the most perfect, angelic face I have ever seen."

It's gruesome. It sounds like something that should be illegal. But it's perfectly legal and more common than you might think.For years, supporters of partial birth abortion have heralded it as rare and often medically necessary to save the life of the mother. They are wrong.

Several major medical organizations have said that the procedure is never medically necessary and is far more common than supporters suggest.

Former Surgeon General C. Everett Koop says partial birth abortion is "never medically necessary to protect a mother's life or her future fertility. On the contrary, this procedure can pose a significant threat to both."

In fact many have misled the public into thinking that this medically unnecessary procedure is rare. In 1997, Ron Fitzsimmons, the Executive Director of the National Coalition of Abortion Providers, admitted that he has "lied through [his] teeth" about how often healthy mothers abort their healthy unborn children. He told the New York Times that, "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" ( New York Times, 2/26/97).

At twenty weeks of development the baby has already developed his own heartbeat, blood type, brain waves, fingerprints, skeletal structure, taste buds, and nervous system. Before he even sees the light of day, he rests and laughs and reacts to his mother's voice. He moves and kicks and cries and even dreams.

Seizing upon these facts, Congress voted to end this procedure in an effort to take back its rightful place as the nation's only law-making body. However, a court in Nebraska deprived Congress of its rightful place in American constitutional governance by striking down the law. In the coming months, the Supreme Court will hear the case and will once again decide whether the Court makes law or the Congress makes law.

Partial Birth Abortion is unnecessary, indefensible, and morally wrong. The American people oppose it. It's time to bring it to an end. The only way to do that is by replacing Justice O'Connor with a judge who interprets law instead of making it.

So Mr. President, make the new fifth vote a vote for the Constitution. Make it the right one.

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