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Kennedy's Partial Birth Abortion Decision Invites Long-Overdue Dialogue

By: John C. Eastman
May 2, 2007

This article appeared as a Forum Column in the May 2, 2007 edition of the Los Angeles Daily Journal.  Reprinted with permission.

Ever since the Supreme Court's decision on April 18 upholding the Partial-Birth Abortion Ban Act enacted by Congress in 2003, proponents of abortion rights have manifested a bit of hysteria about the coming age of doom.

In these very pages a week ago, for example, Professor Susan Estrich announced, with extreme consternation, that "the Roberts Court has begun its march on abortion rights," adding that, "If you can dream of a way to limit abortion rights, and get it enacted, they'll uphold it."

Professor Erwin Chemerinsky claimed that the decision marks "a dramatic change in the law of abortion."

For their part, abortion opponents tried to minimize the scope and impact of the decision, contending that it really didn't alter the landscape of the court's abortion jurisprudence at all. Professor Douglas Kmiec, for example, argued that the decision "is a faithful application" of existing Supreme Court precedent.

Neither of these positions is entirely wrong, but neither is entirely correct, either. On its face, the court's decision in Gonzales v. Carhart, 2007 DJDAR 5189, appears to have faithfully applied the existing Supreme Court precedent in Planned Parenthood v. Casey, 505 U.S. 833 (1982), from 1992, and Carhart v. Stenberg, 530 U.S. 914 (2000), from 2000. By acknowledging that Congress more carefully defined the precise abortion procedure it sought to restrict than had been done in the Nebraska statute struck down in Stenberg, for example, Justice Anthony M. Kennedy was able - quite properly - to distinguish that case in his majority opinion for the court.

And by drawing on language from the joint opinion in the Casey case that he himself had helped to write, which recognized the state's strong interest in fostering life, he was also able to demonstrate that Congress' ban on a particularly gruesome abortion procedure, which occurs moments and inches from complete birth and infanticide, was a perfectly reasonable way for the legislature to try to draw a line between infanticide and abortion that would help prevent a coarsening of the value of human life.

Yet one suspects that Estrich and Chemerinsky, and countless others, are on to something.

Kennedy does, after all, open his opinion with the phrase "unborn child" rather than any of the various euphemisms that have been adopted by the abortion industry to gloss over the realities of what is accomplished in the procedure. His nod to the sterile medical language of the National Abortion Federation, which described one of the procedures not banned by the act of Congress as "evacuat[ing] the fetus," is counterbalanced by his own description of the procedure as one in which "friction causes the fetus to tear apart" such that "a leg might be ripped off."

And his quotation of an abortion doctor's "clinical description" of the partial-birth abortion procedure, gruesome enough in its own right, pales alongside the non-clinical testimony of a nurse who witnessed the procedure:

"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."

With descriptions like these, the good professors must rightly be concerned that it will become increasingly difficulty for anyone to defend abortion as a "fundamental right."

Yet there is more. Kennedy has the temerity to uphold the act, despite his acknowledgement that it applies both pre- and post-viability, "because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb.

That is a proposition that simply cannot be countenanced by the defenders of abortion. As Chemerinsky noted, for example: "I do not regard the fetus before viability as an 'unborn child' or as 'unborn life.'"

By highlighting the "common sense" of the matter, as Kennedy does, statements such as that by Chemerinsky appear, well, nonsensical.

Finally, there is what I believe to be the most profound development in the law of abortion found in Kennedy's opinion. Contrary to Casey and Stenberg, Kennedy was willing to give much greater deference to legislative judgment in the face of conflicting scientific and medical claims about the necessity of partial-birth abortion.

"The State's interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion," the justice noted. Though he claims to be merely applying the precedent, truth be told, this is a profound departure from Casey, in which Kennedy joined an opinion that essentially foreclosed any dialogue on abortion because the court itself had spoken and resolved the issue.

Roe v. Wade, 410 U.S. 113 (1973), closed the door on the genuine political dialogue that was occurring in this country in the late 1960s and early 1970s, and Casey nailed the door shut.

Kennedy's opinion in Gonzales v. Carhart has, finally, reopened the door a crack, recognizing that an issue such as this simply cannot be decided without the input of the people, through the political process and their representatives in the halls of legislatures throughout the land.

Let the dialogue begin.


John C. Eastman is the Henry Salvatori Professor of Law & Community Service at Chapman University School of Law.