Here's what the Supreme Court said Congress could prohibit in last week's Gonzales v. Carhart decision. Here's what the Supreme Court said is not included in a woman's constitutional right to an abortion:
An abortion doctor extracts a baby, feet first, from a mother's womb down through the birth canal until only its head remains inside. The abortion doctor plunges the tips of his surgical scissors into the back of the still-living baby's skull, inserts a suction device into the opening and vacuums out the baby's brains. The abortion doctor then proceeds to completely remove the now-dead baby from the mother's womb.
That's a partial-birth abortion.
It's easy to see why abortion rights advocates never get specific about what they like to call a late-term abortion. It must be a special challenge for anyone who argues that this gruesome "procedure" must be protected under a woman's right to choose. People might conclude you have a pretty radical extreme notion of a woman's right to choose if they learn it includes near-infanticide.
That certainly was Justice Ruth Bader Ginsburg's problem in her overwrought dissent. (She didn't go into details either.) This limited but important decision somehow managed to alarm Ginsburg. She saw it as a full-scale assault on a woman's right to an abortion. Wrote Ginsburg, "The Court's hostility to the right Roe and Casey secured is not concealed."
Of course, Roe v. Wade established a woman's right to abortion in 1973 and Planned Parenthood v. Casey reaffirmed that right 19 years later. One of the justices in the Casey majority was the author of last week's majority opinion. Justice Anthony Kennedy didn't think he was being hostile to Roe or Casey.
Kennedy was nothing if not attentive to the tests he helped fashion in Casey. He found that Congress wasn't creating a "substantial obstacle" by outlawing partial-birth abortions.
"The Act's stated purposes are protecting innocent human life from a brutal and inhumane procedure and protecting the medical community's ethics and reputation...," wrote Kennedy. "Moreover, Casey reaffirmed that the government may use its voice and its regulatory authority to show its profound respect for the life within the woman."
For better or worse, Kennedy returned again and again in last week's decision to the "balance" the Supreme Court struck in the Roe-reaffirming Casey. "Casey confirms the State's interest in promoting respect for human life at all stages in the pregnancy," he wrote. "Physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures."
Ginsburg isn't interested in balance. Never mind that she thinks Casey and Roe should be construed to make sacrosanct the ghastly and medically controversial procedure Congress outlawed in the Partial-Birth Abortion Ban Act of 2003. She sees unconcealed "hostility" to both decisions in the oddest places in Kennedy's majority opinion.
She is upset Kennedy uses the term "abortion doctor." (Would fetal health care provider be better?)
She's upset Kennedy repeats the "anti-abortion shibboleth" that "women who have abortions come to regret their choices, and consequently suffer from 'severe depression and loss of esteem.'" (No, women in post-abortion recovery groups are just imagining things.)
She's upset Kennedy says "unborn child" and "baby" instead of "fetus" and "late-term abortion" instead of "second trimester pre-viability abortions." (Congratulations, you're having a fetus if you don't have a second trimester pre-viability abortion.)
Ginsburg's dissent reads more like a rap sheet from the thought police than a Supreme Court opinion.
What kind of constitutional right depends on euphemisms and doublespeak for its survival? Maybe the kind that relied on penumbras and emanations for its creation.
Actually, Ginsburg does strike a blow for linguistic clarity—and, indeed, legal and moral clarity—at one spot. She points out that the majority opinion accepted Congress' ban on partial-birth abortions because of their brutal nature. But another kind of abortion procedure that Congress left alone "could equally be characterized as 'brutal.'"
Yes, indeed, it could. But, right now, more people grasp the brutality of partial-birth abortion and recognize the struggling humanity of the unborn child at the heart of this "procedure." One of those was a nurse who once assisted the pioneer of the partial-birth abortions. Here's what she told the Senate:
"Dr. (Martin) 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."
It has always seemed unfair, even unseemly, to use such quotes or to describe a partial-birth abortion. But how else to convey the barbarism that some thought should be legal and even constitutional? No more, after last week's balanced and humane Supreme Court ruling.