Loretta Lynch in 2006: Term ‘Living Fetus’ Is ‘Hopelessly Vague’

Ron Sachs/picture-alliance/dpa/AP Images
Ron Sachs/picture-alliance/dpa/AP Images

In 2006, attorney general nominee Loretta Lynch joined other former U.S. attorneys in an amicus brief in a case before the Supreme Court that maintained the federal law against partial-birth abortion was unconstitutional because the term “living fetus” was too vague for those whose job it was to obey and enforce the ban.

As CNSNews.com reports, Congress passed the Partial-Birth Abortion Ban Act in 2003 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.

Lynch and fellow U.S. attorneys argued in their amicus brief in Gonzales v. Carhart that the definition regarding what was banned lacked “clarity.” For example, the phrase “living fetus,” they said, was “hopelessly vague as a legal proscription.”

The Supreme Court, however, ruled, in a 5-4 decision, the language in the federal partial-birth abortion ban was not too vague. Justice Anthony Kennedy said simply, “The act is not vague,” and quoted a nurse’s description of a partial-birth abortion:

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.

Sen. Lindsey Graham (R-SC), who is expected to be among five Republicans to vote for Lynch and thereby allow her confirmation—along with Sens. Susan Collins (ME), Orrin Hatch (UT), Mark Kirk (IL), and Jeff Flake (AZ)—asked Lynch during her confirmation hearing in January about her amicus brief.

“In 2006, you signed an amicus brief supporting Planned Parenthood’s opposition to partial-birth abortion ban; is that correct?” Graham asked.

“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.”

“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.”


Graham told the Huffington Post that Lynch is qualified to serve as attorney general and that keeping Eric Holder on is “corrosive.”

Graham sponsored the Pain-Capable Unborn Child Protection Act, a bill that would ban abortions past the fifth month of pregnancy, in the Senate in 2013.

“I came into the political arena pro-life, and I will leave pro-life,” he said.

Graham also gave the keynote address at the pro-life Susan B. Anthony List Gala earlier this month.


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