John Leo
Partial-Sense Decision

The public's revulsion seems to go unnoticed

"CHAMPAGNE AND SHIVERS," abortion lobbyist Janet Benshoof said in reaction to the Supreme Court's 5-4 vote to strike down Nebraska's ban on "partial-birth" abortion. "Shivers" because the vote was close, "champagne" because the few rogue abortionists who perform this procedure can keep at it, no matter what 30 state legislatures and two-thirds of the American people think.

Just to remind you what the champagne is celebrating, here is an account by Brenda Shafer, a pro-choice nurse who attended a partial-birth abortion in Ohio in 1993: "The doctor delivered the baby's legs and arms, everything but his little head. The baby's body was moving, his little fingers were clasped 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 startled reaction, like a baby does when he thinks that he might fall. Then the doctor opened the scissors up. Then he stuck a high-powered suction tube into the hole and sucked the baby's brains out." "I still have nightmares about what I saw," she added. Yes, that would seem to be an appropriate reaction.

Sen. Daniel Patrick Moynihan thinks partial-birth abortion is " too close to infanticide." I would say that when a bystander can see a baby flinching at the moment of intentional killing, there is no "too close" about it. It is infanticide. And with a lot of tortured mental gymnastics, it has just been protected by our highest court.

Broad vs. narrow. The court ruled that the language of Nebraska's ban was too broad, because it seemed to ban other forms of abortion. Writing for the majority, Justice Stephen Breyer insisted that he lacked the power to interpret the law narrowly. But Justice Antonin Scalia was quick to point out that the court has often done so and was now abandoning "the principle that even ambiguous statutes should be interpreted in such fashion as to render them valid rather than void."
Breyer wrote his opinion in the distancing language favored by people who are about to approve some repugnant act: " transcervical procedures," "osmotic dilators," "instrumental disarticulation," all of it written from the technical point of view of the professional abortionist with a tough job to do. The public's clear moral revulsion seemed to go right past Breyer.

In the high court's 1992 Casey decision, the justices strongly acknowledged that the states have legitimate and important constitutional interests to assert on abortion. In effect, they shifted some decision-making power from the woman and her physician to the state.

It now appears that Casey was a bait-and-switch effort. To placate people who expected Roe v. Wade to be overturned, the court said it would allow limits on abortion, but after this decision, we know it has no intention of allowing any important dent in the country's abortion machine. Justice Anthony M. Kennedy wrote a pained dissent implying that he has been double- crossed after signing on with the Casey majority.

He also said clearly what many think of this court: It has gotten in the habit of replacing the decisions of voters and legislatures with its own personal opinions. Kennedy wrote: "The issue is not whether members of the judiciary can see a difference between [partial-birth and other procedures]. 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."

Perhaps the shabbiest of the court's tactics was to announce that a partial-birth ban must contain an exception for the health of the mother. This was unexpected, and was apparently inserted to ward off future attempts to construct a valid ban. First, the partial-birth procedure is entirely elective and is never used to save a mother's life. Many obstetricians and gynecologists, plus former Surgeon General C. Everett Koop, signed a statement pointing out that "partial-birth abortion is never medically necessary to protect a mother's health or her future fertility."

Second, the Nebraska Legislature would have had to be exceedingly stupid to insert a health exception in light of what the court said in 1973's Doe v. Bolton: that the health of the mother must be construed to include emotional, psychological, familial, and other factors "relevant to the well-being of the patient." In other words, health is defined so broadly and subjectively that any ban that includes a health exception would forbid no partial-birth abortions at all. Yet the court, with a straight face, insists on an exception that would seem to gut any bill that contained it. This decision appears to undermine much of the leeway given to the states in Casey.

It seems to offer every woman and her doctor a trump card to play against the states. Justice Clarence Thomas wrote: "The majority's inisistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the states-- a hostility that Casey purported to reject."This decision shows that we don't need a better law. We need a better court.

Reprinted with permission of the author.