The Magazine

The Courts and Abortion

If the Supreme Court overturns Nebraska's ban on partial-birth abortion, the rationale could be even scarier than the decision

Jun 12, 2000, Vol. 5, No. 37 • By RICHARD W. GARNETT
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After an eight-year hiatus from the abortion controversy, the Supreme Court will decide later this month in Stenberg v. Carhart whether Nebraska may outlaw partial-birth abortion, a practice that even so resolute an abortion-rights supporter as Sen. Daniel Patrick Moynihan says cannot be distinguished meaningfully from infanticide. As is often true in high-profile cases these days, the outcome in Carhart will depend on the inclinations, reactions, instincts, and emotions of Justices Anthony Kennedy and Sandra Day O'Connor. The consensus among Court-watchers, based on these justices' questions during the April 25 oral argument, is that things look bleak for the Nebraska ban. George Washington University law professor Jonathan Turley pronounced that the smart money "would be against the law surviving Supreme Court review." And it's a good thing too, NOW's Patricia Ireland insisted, because banning partial-birth abortion is just a "strategy by antiabortion-rights people to end all abortions."

Pro-choice scare tactics notwithstanding, the Court's decision in Carhart -- even if Nebraska's ban is upheld -- will certainly leave the basic right to abortion untouched. Roe v. Wade is safe. Still, the case is crucial to pro-lifers' efforts to stave off what Pope John Paul II has called "the culture of death." After all, pro-choice arguments generally assume that the lives of unborn children must yield to women's autonomy precisely because they are "unborn." Abortion-rights advocates do concede -- for now, at least -- that babies enjoy full legal protection once these children are "born." The state of Nebraska, its attorney general Donald Stenberg told the justices, has drawn "a bright line between infanticide and abortion." The question for the Court is whether states may draw such lines -- and, more precisely, whether Nebraska's line is "bright" enough -- to prevent us from sliding into the barbarism of legal infanticide.

The last time the Court squarely confronted abortion rights, in Planned Parenthood v. Casey (1992), it retooled but refused to repudiate the right it had created two decades earlier in Roe v. Wade. Writing for a narrow majority, Justices Kennedy, O'Connor, and Souter elevated pop existentialism and talk-show narcissism to constitutional principle, insisting in the now-famous "mystery passage" that "the heart of [the] liberty" protected by the Fourteenth Amendment from state interference is "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Evidently wearied by abortion opponents' dogged persistence, these justices tried to scold them into silence as they called on "the contending sides of [the] national controversy to end their national division by accepting a common mandate rooted in the Constitution." The Court locuta est; causa finita est.

The Court's admonitions notwithstanding, the "contending sides" were soon at it again, this time over partial-birth abortion -- also known as "intact dilation and extraction," or "D&X." Martin Haskell, a veteran of over 1,000 such abortions, described the procedure at an abortionists' conference in 1992:

A woman who is pregnant between the fifth and sixth month has the opening of her womb dilated over two to three days. Instruments are then used to reach into the uterus and grab the feet of the fetus. . . . The fetus is delivered until only the head remains inside the womb. The operator then uses a knife to make an opening in the base of the skull and a suction tube is inserted into the skull and the brain is sucked out. The skull then collapses, killing the fetus and allowing for delivery of the fetus in one piece.

It gets worse. Brenda Pratt Shafer, a former abortionists' nurse, has elaborated:

The doctor delivered the baby's body and arms, everything but his little head. The baby's body was moving. His little fingers were clasping 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 startle reaction, like a baby does when he thinks that he might fall. Then the doctor opened the scissors up. Then he stuck the high-powered suction tube into the hole and sucked the baby's brains out. Now the baby was completely limp. I never went back to the clinic. But I am still haunted by the face of that little boy. It was the most perfect, angelic face I have ever seen.