The Supreme Court's 5-4 decision upholding the federal ban on partial-birth abortion is a first step. But it's only that — a first, limited step toward the ultimate goal of restoring real protection to the unborn. For now that goal, realistically speaking, remains beyond reach.
It seems possible, maybe even likely, that Chief Justice John Roberts assigned the writing of the majority opinion in the partial-birth cases (Gonzales v. Carhart, Gonzales v. Planned Parenthood) to Justice Anthony Kennedy with the aim of nailing down his crucial, tie-breaking fifth vote. This arrangement allowed Justice Kennedy to spell out the rationale for the decision according to his tastes.
To those who have attempted to follow Justice Kennedy's reasoning on abortion since he voted in 1995 to uphold the original decision legalizing abortion, Roe v. Wade, the results were predictable. His rationale comes down to this.
The gruesome partial-birth procedure is simply not acceptable — it's hardly abortion at all but is more like infanticide. Nevertheless other, less extreme methods of dispatching the unborn remain untouched by this ruling. As does the doctrine of Roe that the Constitution confers a "right" to abortion on any woman chooses to exercise it.
The number of abortions in the United States won't be reduced by what the Supreme Court did on April 18. The decision simply means that abortionists accustomed to using the partial-birth procedure will have to find some other way of doing abortions.
And, as a matter of fact, the ruling even leaves the door open to the possibility that an abortionist who wished to do partial-birth abortions might challenge the federal law again at some point in the future, alleging "medical necessity" for health reasons in particular cases. Neither the Supreme Court nor the rest of the nation may have heard the last of partial-birth abortion.
Granted all that, though, it's no less important to recognize what's good about the result in these cases.
First and foremost, a decision upholding the partial-birth abortion ban is infinitely preferable to a decision striking it down, as the Supreme Court did with a similar state law from Nebraska seven years ago. Then the pro-abortionists had something to crow about. Now they don't.
Second, the outcome shows that on this particular issue the makeup of the Supreme Court really has changed for the better. In the earlier partial-birth case, Justice Sandra Day O'Connor voted with the majority to overturn the Nebraska law. (Justice Kennedy voted with the minority to uphold it.) Since then, Justice O'Connor has retired and been replaced by Justice Samuel Alito, who was part of the new five-member majority to uphold the federal ban. That's progress.
Finally, the ruling makes it clear that with one more solidly pro-life justice on the court, really meaningful progress on the abortion issue could be possible. Even the goal of overturning Roe v. Wade or at least sharply scaling it back might not be altogether out of sight.
As matters stand, the lineup on the court is this.
Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer are irrevocably in the pro-choice — that is to say, pro-abortion — camp.
Justices Antonin Scalia and Clarence Thomas are firmly prol-ife. And Chief Justice Roberts and Justice Alito appear to lean that way, although where they come down on Roe v. Wade is still not clear.
As for Justice Kennedy, he has demonstrated that he can't stomach partial-birth killings but has no problem with the other fallout from the Roe decision.
One vote to go. How long, O Lord?
