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Jewish World Review June 29, 2000 / 26 Sivan, 5760

George Will

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Consumer Reports

An Act of Judicial Infamy -- IT PROBABLY WAS INEVITABLE that partial-birth abortion would become, as it did some while ago, a sacrament in the Church of "Choice." That sect's theology cannot risk conceding that what is killed in an abortion ever possesses more moral significance than a tumor. Hence it cannot concede that society's sensibilities should be lacerated by, or that its respect for life might be damaged by, any method of abortion.

But how did this surgical procedure become, as it did Wednesday, not just a constitutional right but a "fundamental" constitutional right--a right deemed integral to the enjoyment of liberty?

Nebraska's ban on partial-birth abortion, passed just one vote short of unanimity by the legislature, and akin to bans enacted by 29 other states, has not survived the Supreme Court's scrutiny. But scant scrutiny was required, given the logic the court locked itself into 27 years ago when, in Roe v. Wade, the court, with breathtaking disregard of elemental embryology, described a fetus as "potential life."

Nowadays pro-abortion forces, speaking with the mincing language of people who lack the courage of their squeamishness, speak of abortion producing "fetal demise." Remarkable, that--the demise of something only potentially alive. But not long ago pro-abortion forces denied that what they call "fetal material," and Nebraska calls "a living unborn child," can feel pain. In fact, partial-birth abortion, which is generally used in the third trimester of gestation, is inflicted on beings that have reflexes and brain activity and other attributes of newborn infants.

Not long ago pro-abortion forces argued that abortion involves no cruelty or gruesomeness from which society should flinch. Now they defend partial-birth abortion in order to defend all late-term abortions, all of which involve the violent dismemberment of "fetal material" that looks exactly like a baby.

Nebraska defined the prohibited practice as "delivering into the vagina a living unborn child" for the purpose of killing it. In this procedure (which the court majority, in its delicacy, flinches from fully describing) the baby is turned, pulled by its kicking legs almost entirely from the mother. Then, with only the top of the skull still in the birth canal, the skull is punctured and its contents sucked out.

Divided 5 to 4, the court held that Nebraska's law, as phrased, might criminalize another, more common procedure used primarily in second-trimester abortions. But Nebraska's attorney general has expressly vowed not to apply the law to this more common procedure.

The court also faulted Nebraska's law for lacking an "exception for the preservation of the . . . health of the mother." But the American College of Obstetricians and Gynecologists, which opposes restrictions on abortion, says it can identify "no circumstances under which" partial-birth abortion "would be the only option to save the life or preserve the health of the woman." And the American Medical Association says "there does not appear to be any identified situation in which" partial-birth abortion "is the only appropriate procedure to induce abortion."

The primary reason the court ruled against Nebraska is that it cannot find traction on the slippery slope onto which it so improvidently stepped 27 years ago. America's subsequent slide into the culture of death was manifest Sept. 26, 1996, during a Senate debate on partial-birth abortion.

Pennsylvania Republican Rick Santorum asked Democrats Russ Feingold of Wisconsin and Frank Lautenberg of New Jersey this: Suppose during an attempted partial-birth abortion the infant, instead of being just almost delivered, with only a few inches of skull remaining in the birth canal, slips entirely out of the canal. Is killing the born baby still a "choice"? Feingold and Lautenberg said it was still a matter between a mother and her abortionist. (C-SPAN captured this exchange. The Congressional Record was subsequently falsified.)

Feingold and Lautenberg anticipated the court. In Roe v. Wade, which arose in Texas, the court left standing a Texas law prohibiting "the killing of an unborn child during parturition," meaning the killing of an infant "in the state of being born and before actual birth." On Wednesday, such killing--what Justice Scalia, dissenting, accurately calls "live-birth abortion"--became a fundamental constitutional right.

Wednesday's decision will, as Justice Scalia said in dissent, rank with the cases of Dred Scott (1857, saying blacks could not be citizens and so could not seek judicial protection of their rights) and Korematsu (1944, upholding the internment of American citizens of Japanese ancestry) as acts of judicial infamy.

Al Gore approving Wednesday's decision, and George Bush deploring it, affirm strikingly different understandings of constitutional reasoning and elemental morality. With the court and the culture in the balance, let no one say this is an unimportant election.

Comment on JWR contributor George Will's column by clicking here.


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