Roe = Partial-Birth Abortion

"The U.S. Supreme Court has ruled that Roe v. Wade equals partial- birth abortion, and Al Gore agrees. In contrast, Governor George W. Bush believes partial-birth abortion should be banned."

NRLC President Wanda Franz, Ph.D.

"In the almost 30 years since Roe, this Court has never described the various methods of aborting a second- or third-trimester fetus."

From Justice Clarence Thomas's dissent in Stenberg v. Carhart

"The issue is not whether members of the judiciary can see a difference between the two procedures [partial-birth abortion and 'D&E']. It is whether Nebraska can. The Court's refusal to recognize Nebraska's right to declare a moral difference between the procedures is a dispiriting disclosure of the illogic and illegitimacy of the Court's approach to the entire case."

From Justice Anthony Kennedy's dissent in Stenberg v. Carhart

" 'What this means is that this fight does not go away,' said Kathryn Kolbert, a senior researcher at the Annenberg School at the University of Pennsylvania, who is an abortion-rights lawyer. And 'the longer you have to dwell on the details of this [partial-birth abortion],' she added, 'it can't help the pro-choice side.' "

[New Jersey] Record, July 2

After reading much of the commentary that followed the Supreme Court's magical mystery tour-like June 28 decision, it's difficult to know whether pro-lifers were more eloquent in their criticism or pro-abortionists more lame in their defense of the 5-4 decision overturning Nebraska's ban of the wretched partial-birth abortion technique.

One thing we do know clearly was succinctly expressed by Dr. Franz in her remarks quoted above. Under the Court's Stenberg v. Carhart ruling, Roe's reach is no longer confined to killing inside the womb. Pro-abortion Vice President Al Gore supports this hideous ruling. Pro-life Texas Gov. George W. Bush opposes it. [I encourage you to go to Today's News & Views at www.nrlc.org and read the July 3 through July 7 editions. All dealt with Stenberg v. Carhart.]

As I watched several pro-abortionists lamely try to defend the Court's decision, I genuinely felt sorry for at least some of them. To all but the ethically comatose, it had to be tough sledding. The Court majority tacitly acknowledged this when it gingerly stepped around any wording that might even suggest how gut-wrenchingly brutal a partial-birth abortion actually is.

Indeed, to read Justice Stephen Breyer's majority opinion is like experiencing time travel. He employed language so strained, so devoid of plain meaning, and so dehumanizing, it could have been written by Joseph Goebbels. Indeed, apologists for the Third Reich would have tipped their hats in admiration.

The opinion will no doubt someday go down in the annals of Supreme Court claptrap. In his dissent Justice Antonin Scalia began by writing, "I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott." (These are the now universally deplored decisions which, respectively, authorized the internment of Japanese- Americans during World War II and held that a Black American descended from slaves had no rights as an American citizen.)

For a really first-rate legal analysis of Stenberg, you could do no better than Richard Coleson's accessible article that begins on page one. From my layman's perspective, I could write for the next three pages and not begin to touch all that was significant in Stenberg. Let me mention just three out of a dozen possible subject areas.

First, many of us have long admired Justice Thomas for many reasons. As wonderfully withering as Justice Scalia's dissent surely was (see page 19), Justice Thomas's scathing critique ought to be where you go first. It is a model of clarity, completeness, and comprehensiveness. Law professors, regardless of their views on abortion, should make his lengthy dissent known to their students.

Thomas just obliterated one of the two primary underpinnings of the majority's opinion: that Nebraska's law was vague. Supposedly, this meant that the "D&E" abortion technique - - the most commonly used killing method after the first trimester

- - was also included, thus constituting an "undue burden" on a woman's "right" to an abortion. Thomas patiently pointed out that the state of Nebraska expressly said its law did not cover other abortion techniques. Under ordinary principles of statutory construction, that ought to have been enough.

Unless one demonstrates (in Scalia's words) "a disregard for fair meaning," it is difficult to confuse the two abortion techniques. As demonstrated in a number of venues, there are any number of examples where partial-birth abortion and "D&E" have been specifically contrasted, Thomas wrote. These include a fact sheet authored by the American Medical Association's Board of Trustees and the conclusions found in many medical journal articles.

A second area worth commenting on is Justice Kennedy's surely-you- can't-mean-this dissent. Kennedy was unexpectedly part of the three-member plurality in the 1992 Casey decision which not only upheld the guts of Roe v. Wade but seemingly put its long-term survival on surer footing. Ostensibly, however, Casey put the Court on record, if you will, as open to "reasonable" limitations which did not attack the core "right" to abortion.

But Stenberg made a mockery of this nod to "moderation." And it is this almost palpable sense of betrayal that gives Kennedy's dissent such poignancy and power. It's as if he is saying, "Hey, this isn't what I agreed to!" Without naming names, Kennedy just flayed Justice Sandra Day O'Connor, who, once again, rejected precisely the kind of limited restrictions that her previous opinion all but shouted she would accept.

Kennedy simply anihilated the majority's second primary justification: that the law "failed" to include a health exception. Kennedy went to great lengths to demonstrate that there was never a case when a partial-birth abortion was the only option. He wrote, "The American College of Obstetricians and Gynecologists (ACOG) 'could identify no circumstances under which D[partial-birth abortion] would be the only option to save the life or preserve the health of the woman.' The American Medical Association agrees...."

Moreover, Kennedy pounded home that the Court plurality in Casey [made of himself, O'Connor, and Justice David Souter] had explicitly put an end to a line of cases where abortionists were given carte blanche to do anything they wished. This "physician- first view" reached its height in Akron but repudiated in Casey.

But, alas, it was back to business as usual in Stenberg, Kennedy angrily concluded. "Casting aside the views of distinguished physicians and the statements of leading medical organizations," he wrote, "the Court awards each physician a veto power over the State's judgment that the procedures should not be performed." The plaintiff, LeRoy Carhart, did not once-in-awhile use the partial- birth abortion technique but employed it for every abortion he performed on women more than 15 weeks pregnant!

Third, and finally, there is what is perhaps the ugliest undertow in a majority opinion swirling with noxious ideas: the notion, articulated specifically by Justice John Paul Stevens in his separate opinion, that abortion is an ugly, nasty business so why jump only on partial-birth abortions and not include D&E? This seemed to infuriate Kennedy, who cited a number of justifications, beginning with normal deference to the legislative branch. Let me quote at length.

The issue is not whether members of the judiciary can see a difference between the two procedures. It is whether Nebraska can. The Court's refusal to recognize Nebraska's right to declare a moral difference between the procedure is a dispiriting disclosure of the illogic and illegitimacy of the Court's approach to the entire case. Nebraska was entitled to find the existence of a consequential moral difference between the procedures. We are referred to substantial medical authority that D [partial-birth abortion] perverts the natural birth process to a greater degree than [D&E], commandeering the live birth process until the skull is pierced. Witnesses to the procedure relate that the fingers and feet of the fetus are moving prior to the piercing of the skull; when the scissors are inserted in the back of the head, the fetus' body, wholly outside the woman's body and alive, reacts as though startled and goes limp. D[partial-birth abortion]'s stronger resemblance to infanticide means Nebraska could conclude the procedure presents a greater risk of disrespect for life and a consequent greater risk to the profession and society, which depend for their sustenance upon reciprocal recognition of dignity and respect. The Court is without authority to second-guess this conclusion. The natural birth process has been appropriated; yet the Court refuses to hear the State's voice in defining its interests in its law. The Court's holding contradicts Casey's assurance that the State's constitutional position in the realm of promoting respect for life is more than marginal.

For some of the many reasons we should remain optimistic, I suggest you turn to page 18. Rest assured, the Court's Stenberg decision is completely out of step with where the public is headed.

There is perhaps no better way to end our look than with this from the Court's master wordsmith, Justice Scalia:

Today's decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism--as well it should. I cannot understand why those who acknowledge that, in the opening words of Justice O'Connor's concurrence, "[t]he issue of abortion is one of the most contentious and controversial in contemporary American society," persist in the belief that this Court, armed withneither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to thepeople--where the Constitution, by its silence on the subject, left it--and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.

dave andrusko [dha1245@juno.com]