- The Washington Times - Friday, July 7, 2000

Prohibitions on cruelty to animals do not confront constitutional barriers. But what about cruelty to a human fetus inflicted by a partial birth abortion, a close relative of infanticide? A nurse who observed the procedure, which occurs outside the womb and 16 weeks or more after pregnancy, testified before Congress as follows: "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."

It would seem a self-evident truth that legislatures do not offend the Constitution by banning grisly partial birth abortions in the name of morals and decency; after all, if only animal welfare were at stake no constitutional eyebrows would even be raised, and, that seldom-used abortion procedure is "not medically indicated" and "not good medicine," according to the American Medical Association. Indeed, a select committee of the American College of Obstetricians and Gynecologists "could identify no circumstances under which this procedure … would be the only option to save the life or preserve the health of the woman."

But in the U.S. Supreme Court, when the mantra of abortion rights is chanted, no verity is safe from molestation, even Albert Einstein's theory of relativity. Thus, a 5-4 majority in Stenberg vs. Carhart (June 28, 2000), speaking through Justice Stephen Breyer, upbraided the state of Nebraska for revolting against partial birth abortions, while leaving alternate less gruesome and safe abortion methods undisturbed. More befitting a polemist than an exalted judge, he twisted, misstated, and neglected facts and statutory language.

In other words, to paraphrase Justice Oliver Wendell Holmes, truth in the Supreme Court is the majority viewpoint that can whip all others, whether by brute force or otherwise.

The Supreme Court concocted a constitutional right to an abortion from captivating emanations and penumbras in Roe vs. Wade (1973). Although Justice Harry Blackmun, writing for a 7-2 majority, purported to rely on the liberty clause of the Fourteenth Amendment, most of his labored and protracted opinion consulted non-constitutional sources, including ancient attitudes, the Hippocratic oath, the common law, English statutory law, American law, the views of the American Medical Association, and the position of the American Public Health Association. The Constitution and constitutional precedents briefly appear and are quickly heard, but then mysteriously are seen no more, like Rosencrantz and Guildenstern in Shakespeare's "Hamlet."

If constitutional law is against a coveted result, Justices generally prefer to avert their eyes than openly confront the embarrassment.

The Roe proclamation liberated abortion rights from any constitutional moorings. Whatever policy view could command the assent of a majority or plurality of the nine Justices was fastened on the nation, but ornamented by constitutional language as a bow to judicial etiquette. Thus, the court has decreed an unlimited right to an abortion during the first trimester of pregnancy; a right restrained only by concern over the mother's health during the second trimester; and, after fetal viability, a right to abort whenever childbirth would create psychological stress or physical danger. Any "undue burden" on the woman's right to choose, the court has amplified, is constitutionally taboo.

The Constitution, however, is clueless as to what might violate the undue burden standard. The court's inventiveness thus must be repeatedly summoned to fill in the gap. In Carhart, the partial birth abortion ban affected a tiny fraction of the nation's approximately 1.2 million annual abortions, the overwhelming majority during the first trimester. The prohibition, moreover, was at most a featherweight burden on the right to choose. According to the expert AMA and the ACOG, mothers invariably would enjoy non-prohibited options without jeopardizing either their lives or health.

Moreover, the high court had promised in Planned Parenthood vs. Casey (1992) that the undue burden test would leave states some room "to express profound respect for the life of the unborn."

Justice Breyer maneuvered around these formidable constitutional and factual obstacles with the skill of the casuist. First, the language of the Nebraska prohibition was stretched to reach the most commonly used second trimester abortion technique, styled "dilation and evacuation," contrary to the view of the state attorney general and the venerated canon that statutory ambiguities should be resolved to eliminate, not to create, constitutional difficulties.

Even more audaciously, Justice Breyer decreed that since the health views of the AMA and ACOG failed to command universal assent in the medical community, a partial birth exception must be created for the dissenters to pass constitutional muster. In other words, a brutal and unnerving abortion technique can be prohibited except to those who wish to use it.

This would be preposterous outside the fantasy world of abortion rights. Would anyone seriously argue that mandatory childhood vaccinations for smallpox and sister diseases over the objections of dissenting doctors are unconstitutional, or that the federal Food and Drug Administration may not constitutionally override iconoclast medical views about the anti-cancer efficacy of Laetrile in denying the drug legal status?

The controlling joint opinion in Casey maintained that the Roe precedent had "call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution," and that Roe's reaffirmation in Casey would continue that happy pact. Yes, and Chief Justice Roger Brooke Taney fantasized that he had put the slavery question to rest with his misbegotten opinion in Dred Scott vs. Sanford (1857) that declared no black held rights that a white man was bound to respect.

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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