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Jewish World Review July 3 2000 /30 Sivan, 5760

David Limbaugh

David Limbaugh
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Consumer Reports

Partial-birth and total death -- IN A 5-4 DECISION, the Supreme Court invalidated a Nebraska statute that prohibited partial-birth abortions. In the process, it gravely diminished the sanctity of life and of the United States Constitution.

The court's decision in Stenberg v. Carhart shocked many who thought that even a liberal-leaning court would not sanction the hideous procedure known as partial-birth abortion. The procedure generally involves a late-term abortion in which a child is drawn down the birth canal feet first until the head has emerged. The back of the skull is then pierced with scissors and the brain is vacuumed out of the living baby's skull, killing him.

The court chose to follow its prior holdings on abortion and, in particular, three principles that those cases established. First, before fetal viability (when a fetus is able to live outside the uterus) the woman has a right to choose to terminate her pregnancy. Second, a law that encroaches on that right is unconstitutional. Third, states may only regulate or restrict abortion of viable fetuses if their statutes include exceptions to protect the life and health of the mother."

The court invalidated the Nebraska statute for "at least two independent reasons." First, although it contained an exception to protect the life of the mother, it did not have a health exception. Second, the court determined that the statute was too broad. While purporting to outlaw only "partial-birth" abortions, the statutory language supposedly could have been construed to prevent abortions of nonviable fetuses as well.

Abortion foes resist inclusion of the health exception because they believe it is a ploy to dilute the statute beyond any meaning. They insist that the partial-birth abortion procedure never jeopardizes the health of the mother and that such language would just give abortionists a license to abort at will, using that awful procedure. Indeed, Justice Scalia, in his characteristically brilliant dissent, observed that the "Court must know ... that demanding a 'health exception' ... is to give live-birth abortion free rein."

Justice Stevens, in his concurring opinion, implied that the statute's proponents are hypocritical because they favor banning partial-birth abortion while permitting other types of abortions, which he argued are equally gruesome. I agree that all abortions are equally gruesome. But not that partial-birth bans are hypocritical. State legislatures know that the court would never uphold a law banning all abortions. They outlaw this procedure because it is so visible as to deny abortion advocates safe haven in the sanctuary of their minds' ability to rationalize the unseen. So they save lives where they can.

The court's decision not only abandons innocent babies, it also chips away further at the Constitution. Scalia correctly notes that the Constitution says nothing either way about abortion. The court's decision is based not on legal reasoning or constitutional interpretation, but a value judgment, "dependent upon how much one respects ... the life of a partially delivered fetus. ..."

Scalia is right, of course. The Constitution is absolutely silent as to a woman's right to terminate her pregnancy. The tragic reality is that our court, for the most part, has become a pathetic reflection of our morally-challenged society. The court is just another prisoner in that gargantuan maximum-security facility known as political correctness. Society has determined that a mother's convenience trumps the life of the innocent unborn and has demanded that this convenience be elevated to the level of a constitutional right. And so it has.

But the unforgivable scandal is that this warped set of values is now governing issues of life and death on the basis of semantics rather than principle. By characterizing this procedure as a type of abortion instead of infanticide it is constitutionally protected instead of criminalized.

The court went to great pains to demonstrate that it was following its prior decisions that manufactured out of whole cloth a woman's right to terminate her pregnancy. Wouldn't it be wonderful if the court would honor the Constitution as much as it does those deplorable cases misinterpreting it?

Abortion advocates exaggerate in saying that a reversal in the court's holdings on abortion would end a woman's right to choose. Untrue. Overruling those cases would not be outlawing abortion per se, but deferring the issue to the states, to be decided by their respective legislatures.

The court should have followed Scalia's recommendation and reversed its earlier decisions and upheld Nebraska's statute. Instead it chose to devalue the Constitution and life.

JWR contributor David Limbaugh is an attorney practicing in Cape Girardeau, Missouri, and a political analyst and commentator. Send your comments to him by clicking here.



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