Pro-Life Legal Scholar Defends Constitutionality of Dismemberment Abortion Ban

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In the Senate Health and Human Services Committee, expert constitutional attorney Mary Spaulding Balch staunchly defended the prudence of enacting a ban on dismemberment abortions in Texas.  Her testimony on Senate Bill 415, authored by Senator Charles Perry (R-Lubbock), centered on the reasons why such a Pro-Life law would likely be held constitutional by the Supreme Court of the United States, notably by Justice Anthony Kennedy.  The transcript of Mrs. Balch’s testimony is below. 

Thank you for the opportunity Chairman and committee.  My name is Mary Spalding Balch, here to talk in support of SB 415.  I’m an attorney and I am the immediate past director of state legislation for National Right to Life.  I say immediate past director because, after almost 27 years, I officially retired in October.  But this issue is one you cannot get away from because of the impact on so many lives.  And so I am here today.

In the many years that I have been state legislative director, I have worked with many National Right to Life state affiliates in passing Pro-Life legislation, including Texas Right to Life.  Legislation such as parental involvement, informed consent, ultrasound laws, reporting, partial birth abortion, and dismemberment bans.  I’ve drafted legislation, provided constitutional analysis, given testimony in court, written amicus briefs, and worked closely with state AG offices in developing winning arguments to defend these laws.

I’ve lectured on this issue across the country; I’ve given workshops; I’ve spoken at conventions; I’ve spoken at college campuses.  If there is one thing I have learned over the many years that I have worked in the Pro-Life movement, it is that Pro-Lifers need to know how to count to five.  Which brings me to this current bill, the Dismemberment Abortion Ban.

People are concerned whether or not this bill is constitutional, and what I can tell you is that our experience over the past 40 years is that the determination of whether or not an abortion bill is constitutional is determined by whether or not you have a majority of the members sitting on the current Supreme Court.  And this bill we do.

In fact, I think it is highly likely that we can count to five, assuming that the current nominee is appointed, or someone who takes a similar approach to the constitution.  I think that the likelihood of this bill being upheld is very high.  I say that because what I’ve heard some people say, people are concerned about whether Justice Kennedy would ever be able to support a pre-viability ban.  Well, that question was answered on two separate occasions by Justice Kennedy himself.

The first time was when he wrote a very blistering dissent in the Stenberg v Carhart case, which was the Nebraska Partial Birth Abortion case, where the majority of the court at that time declared that the Partial-Birth Abortion Ban was unconstitutional.  Justice Kennedy wrote a compelling dissent where a few years later he actually got to write the majority opinion in the Gonzales v Carhart decision upholding the federal ban on partial birth abortion.

I say that we can get five votes on this because the very same logic that was applied by Justice Kennedy back in 2007 is the same logic that will be applied to this bill as well.  Senator, Justice Kennedy was concerned about protecting the integrity of the medical profession.  I think the majority of the American people would be astonished to learn that this is legally protected killing in the United States.

The vast majority of the American people, and mothers who are considering these types of abortions would be surprised to learn that their unborn children are alive while this procedure is being performed.  It also mirrors the partial birth abortion decision, and so I think in conclusion that we do have at least five votes that would support banning the killing of a living unborn child by ripping that unborn child limb by limb.  Thank you.

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