Continued protection of abortion
Right or Wrong?
Three Supreme Court cases last June provide a look at what passes for constitutional law (or what is left of it) these days.
First, in Stenberg v. Carhart, the Court held unconstitutional Nebraska's prohibition of "partial birth abortion" (PBA). In other types of abortion the child is killed inside the mother, by vacuum suction, injection or dismemberment. PBA involves killing the child after partial delivery.
As dissenting Justice Clarence Thomas described the PBA, "After dilating the cervix, the physician will grab the fetus by its feet and pull the fetal body out of the uterus into the vaginal cavity. At this stage of development, the head is the largest part of the body. Assuming the physician has performed the dilation procedure correctly, the head will be held inside the uterus by the woman's cervix. While the fetus is stuck in this position, dangling partly out of the woman's body, and just a few inches from a completed birth, the physician uses an instrument such as a pair of scissors to tear or perforate the skull. The physician will then either crush the skull or will use a vacuum to remove the brain and other intracranial contents from the fetal skull, collapse the fetus' head, and pull the fetus from the uterus."
The Court, by a 5-4 vote, struck down the PBA prohibition for two reasons. First, because it did not allow PBA to preserve the "health of the mother." "[T]he Court must know," said dissenting Justice Anton Scalia, "that demanding a `health exception' which requires the abortionist to assure himself that, in his expert medical judgment, this method is ... marginally safer than others (how can one prove the contrary beyond a reasonable doubt?) is to give live-birth abortion free rein."
The second reason the Court struck down the Nebraska law was because it could prohibit not only PBA but also "dilation and evacuation" (D&E), the "most commonly used procedure during the second trimester." Concurring Justice John Paul Stevens said he found "no reason to believe that [PBA] is more brutal, more gruesome, or less respectful of `potential life' than the equally gruesome procedure Nebraska claims it still allows."
And concurring Justice Ruth Bader Ginsburg agreed that, "the most common method of performing pre-viability second trimester abortions is no less distressing or susceptible to gruesome description." Stevens and Ginsburg got that one right. The "equally gruesome" D&E abortion, as clinically described by the Court, "involves (1) dilation of the cervix; (2) removal of ... fetal tissue using non-vacuum instruments; and (3) (after the15th week) the potential need for instrumental disarticulation or dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus."
The PBA ruling confirms the Court will permit no law to prohibit any method of abortion at any stage. The PBA prohibition, incidentally, was symbolic. It would not have prevented a single abortion. It prohibited only the killing of a partially delivered, living baby; the abortionist could evade it by killing the child inside the womb.
The PBA decision, however, shows the face of the culture of death. In the words of Scalia, "The method of killing a human child one cannot even accurately say an entirely unborn human child — proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion."
The second case is Hill v. Colorado, where the Court upheld a statute restricting the right to "knowingly approach" within eight feet of unconsenting persons to communicate with them within 100 feet of a health care facility. As the case confirms, abortion opponents are subject to greater restrictions on peaceful speech than are any other persons.
"Having deprived abortion opponents of the ... right to persuade the electorate that abortion should be restricted by law," said Scalia, "the Court today ... expands its assault upon their ... right to persuade women contemplating abortion that [it] is wrong."
The third case is Santa Fe Independent School District v. Doe, where the Court forbade a public school district to allow a student-initiated and student-led prayer before a football game. In his dissent, Chief Justice William Rehnquist accurately said, "The Court distorts ... precedent [and] the tone of the court's opinion ... bristles with hostility to all things religious in public life."
The three cases are related. The Court forbids the people to affirm in their public capacity that God is the source of inalienable rights. We ought not to be surprised at the result. The quote is wrongly attributed to Dostoevsky, but it remains true that "If God does not exist, then everything is permitted." Even the legal protection of baby killers as a privileged class.
Charles Rice is a professor in the Notre Dame Law School. His column appears every other Tuesday.
The views expressed in this column are those of the author and not necessarily those of The Observer.
All Viewpoint Stories for Tuesday, September 12, 2000