Jewish World Review July 3, 2000 / 30 Sivan, 5760
By an excruciatingly close 5-4 majority, the court struck down a Nebraska law that sought to outlaw a procedure that isn't even an abortion. It consists of sucking out the brains of a nearly delivered baby, an operation the officially pro-choice American Medical Association has said is never medically necessary. The decision effectively voids the late Justice Harry Blackmun's invented "trimester'' system in which he said the "fetus'' could acquire protection the longer it remains in the womb.
Justice Sandra Day O'Connor -- whose views Ronald Reagan promised would "not disappoint'' pro-lifers -- cast the deciding vote. O'Connor said the Nebraska law was unconstitutional because it failed to include a "health-of-the-mother'' exception. That is a loophole large enough for any abortionist. Besides, how can a woman be a mother unless the child she has chosen to kill is a baby before it is born?
The normally pro-choice Justice Anthony Kennedy joined in the dissent. Kennedy argued, "The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential.'' But that is precisely what happened when the 7-2 majority in Roe vs. Wade struck down state laws protecting unborn life and subsequently made it impossible for them to enact new ones. Justice Kennedy is behind the times when he writes, "The State's constitutional authority is a vital means for citizens to address these grave and serious issues, as they must if we are to progress in knowledge and understanding and in attainment of some degree of consensus.'' But the Supreme Court will not allow any such consensus to form or new state laws to be passed restricting even the most gruesome form of abortion at the moment of birth. Such is the legacy of Roe.
A similar point was made by Justice Antonin Scalia. Scalia said the court's decision had been "arrived at by precisely the process Casey promised -- a democratic vote by nine lawyers, not on the question whether the text of the Constitution has anything to say about this subject (it obviously does not); nor even on the question (also appropriate for lawyers) whether the legal traditions of the American people would have sustained such a limitation upon abortion (they obviously would); but upon the pure policy question whether this limitation upon abortion is `undue' -- i.e., goes too far.'' The case Scalia referenced is Planned Parenthood of Southeastern Pa. vs. Casey, in which the court ruled that no "undue burden'' may be placed on a woman seeking an abortion.
Scalia called for a return of the abortion question to the people "and let them decide, State by State, whether this practice should be allowed.''
Justice Clarence Thomas accused the court of applying a totally different set of standards to abortion than it applies to all other questions that come before it.
So now abortion has become a major presidential campaign issue. Reacting to the court's ruling, Gov. George W. Bush called partial-birth abortion an "inhumane practice.'' Vice President Al Gore spouted the usual "right-to-choose'' lingo. Polls show opinion on abortion, though still conflicted, is heading in a pro-life direction. A new Los Angeles Times Poll found support for Roe has declined to 43 percent, from 56 percent as recently as 1991. Sixty-five percent said abortions should be illegal in the second trimester. There is a gender gap, with a surprising 72 percent of females opposed to second-trimester abortions, compared to 58 percent of men (abortion has always been favored more by men who prefer their pleasure without consequence).
While not frightening the conflicted, Bush can shape the debate by repeatedly talking about (and
showing) what constitutes a partial-birth abortion. He can accuse the Democrats of being
extremists, because most people believe this procedure to be extreme. There is a growing
uneasiness about what 30 million dead babies -- had they been permitted to live -- might have
become. Help is available for women with problem pregnancies. Now all the women and babies
need is someone to speak for them. We'll soon know whether the governor is up to it. A majority of
this pathetic court clearly is