Upholding Partial Birth Abortion
By that I mean nothing more than that our laws should naturally express “the dignity of the person” and logically “determine the basis for his fundamental rights and duties” (Catechism of the Catholic Church, Para. 1956). June 28 should be a day (needless to say a peaceful day) of outrage, of anger and of steely resolve in light of the law which actually wound up being made on this day just a short time ago.
But it likely won’t be. In all likelihood, June 28, 2002 will go by much the same way as June 28, 2000 did. People will get up, go to work, tend to their families, flip on the television for a bit and shuffle off to bed — mostly oblivious to what our United States Supreme Court decided on this day two years ago. (As with every pro-life issue, of course, there will have been no coverage of it whatsoever in the mainstream news media.)
Most of the readership of Catholic Exchange should be familiar with the date of January 22, 1973. That’s the date the U.S. Supreme Court handed down its infamous decision in Roe v. Wade, overriding the will of our state legislatures and providing constitutional sanction, within the limits it set forth, for abortion in this country.
The law has “advanced,” however, since the days of Roe. So much so that today, June 28, is two years to the day since the Supreme Court handed down its decision in Stenberg v. Carhart, a case that overturned a Nebraska law proscribing what is commonly referred to as “partial birth abortion.” Stenberg should be every bit as infamous as Roe in the minds of the Pro-Life community, but, oddly, it is not. Most people have never even heard of it. I am writing to remedy that situation, to the extent that I can.
I feel obliged to tell you, however, right here, before you read on, that some of what follows may prove to be deeply and profoundly disquieting to the average reader. To quote Justice Antonin Scalia, a prominent dissenter in the case (i.e., one of the Justices who rightly voted to uphold the law banning the abortion procedure), “The method of killing a human child — one cannot even accurately say an entirely unborn human child — proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion” (Scalia Dissent, pg. 1).
Nebraska is one of at least 30 states that have attempted to ban the partial birth abortion procedure. The person who challenged Nebraska’s law barring partial birth abortion was a Dr. Leroy Carhart, who performed the procedures in a clinic in Nebraska. As pointed out by Justice Anthony Kennedy, another prominent dissenter in the case, Dr. Carhart had no specialty certifications in any field related to childbirth, and he even lacked admitting privileges at any hospital (Kennedy Dissent, p. 2). That, in the interest of full disclosure, gives you some idea as to the qualifications and standing of the “doctor” at issue.
The Gruesome Reality
I will defer to the published opinion of a third prominent dissenter in the case, Justice Clarence Thomas, for a description of the partial birth abortion procedure itself. You should be aware that the description I reproduce here, although shocking to the conscience, is not one of Justice Thomas’s own devising. Neither Thomas nor I need make any attempt to “sensationalize” in a matter like this. Rather, the description in Thomas’s opinion is a direct quotation from a paper by one Dr. Martin Haskell entitled “Dilation and Extraction for Late Second Trimester Abortion,” presented at the National Abortion Federation’s September 1992 Risk Management Seminar:
“With a lower [fetal] extremity in the vagina, the surgeon uses his fingers to deliver the opposite lower extremity, then the torso, the shoulders and the upper extremities.
The skull lodges at the internal cervical os. Usually there is not enough dilation for it to pass through. The fetus is oriented dorsum, or spine up.
At this point, the right-handed surgeon slides the fingers of the left hand along the back of the fetus and “hooks” the shoulders of the fetus with the index and ring fingers (palm down).
[T]he surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down, along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger.
[T]he surgeon then forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge the opening.
The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely from the patient” (Thomas Dissent, pgs. 9-10).
Justice Kennedy’s dissent provides similarly gruesome accounts of related procedures, detailing how the abortionist will “grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out,” dismembering the fetus by “tearing the grasped portion away from the remainder of the body.” (Kennedy Dissent, pg. 3) Kennedy describes how the fetus “in many cases, dies just as a human adult or child would: It bleeds to death as it is torn limb from limb.” (Kennedy Dissent, pg. 3) It will be the last detail I provide, but the fetus can most certainly still be alive during the beginning part of the dismemberment process, and Kennedy recounts, based on Dr. Carhart’s own testimony, that “it can survive for a time while its limbs are being torn off.” (Kennedy Dissent, pg. 3)
If you at all can, you should stop and read again those descriptions of what is nothing less than infanticide. That’s the moral environment you’re living in right now. That’s what’s going on all over the country, right now, with the express blessing of the Highest Court in the Land.
Trumping the Will of America
I find it impossible to comprehend. A validly enacted statute prohibiting these barbaric procedures — a type of anti-abortion statute that has been passed by the legislatures of at least 30 states! — was struck down by the Supreme Court majority (i.e., 5 of 9) on January 28, 2000. In the opinion of the majority, the Nebraska statute constituted an “undue burden” upon a woman’s ability to obtain an abortion. Five unelected, individual Justices, that is, overrode the will of the majority of the States and of the American people. (A poll commissioned by the National Conference of Catholic Bishops and the Knights of Columbus showed that 68 percent of Americans support the outlawing of this procedure. That seems disappointingly low in light of what’s really at issue, but the poll says what it says.)
Justice Scalia opens his dissent by stating, “I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu [upholding Japanese internment during World War II] and Dredd Scott [denying citizenship to blacks in the pre-Civil War era].” I hope and trust that Justice Scalia is right in his assessment. Overturning Stenberg would be an important first step in the right direction. (The Pro-Life movement, however, would still have more than enough work to keep itself occupied for the foreseeable future. I, myself, for example, don’t think that any Justice on the Supreme Court to date has gone far enough down the road toward recognizing the genuine “personhood” of the unborn child. But let’s take things one step at a time.)
So much is askew in American culture today. There are people who sincerely believe that Stenberg was rightly decided — that Roe was rightly decided. Lawrence Tribe, a perennial candidate for a seat on the U.S. Supreme Court, has disparaged critics of Roe as simply voicing their “disapproval of [women’s] moral choices in wishing to escape the burdens that women but not men have long been fated to bear as the price of sexual pleasure” (L. Tribe, American Constitutional Law (Foundation Press, 1978). Just stop and listen, for a moment, to that: children as “burdens;” the predictable focus on transactions and their “price;” the equally predictable focus on personal “pleasure.” That’s the worldview reflected in decisions like Roe and Stenberg. That’s the worldview we’re up against in 2002. We need to be aware of it. We need to be aware of what the United States Supreme Court decides when it comes to important issues. We need to be aware that it is the President of the United States who appoints the Justices to the Supreme Court, and that it is a committee of senators which is charged with confirming (or not) those appointments. These are all elected officials. Let’s be particularly aware of that on election days.
Let’s take the time out, also, to be aware of these sad things today, June 28. Unhappy Anniversary.
© Copyright 2002 Catholic Exchange
John Allen is an attorney in Stamford, CT. His brother Tom is editor-in-chief of Catholic Exchange. You can email John at john.allen@us.abb.com.
