Amid the election reaction on Wednesday, the Supreme Court heard two cases concerning a federal ban on partial-birth abortion. It is encouraging at the least that the court even agreed to hear the cases, considering that in 2000 a 5-4 court struck down a Nebraska ban on this gruesome procedure. As was her habit, former Justice Sandra Day O’Connor cast the deciding vote. Could the court be in the process of reversing itself? Let’s hope so.
But first we should remind readers just what happens during a partial-birth abortion, since so many news outlets tend to use as technical language as possible. For instance, while you won’t find any description of the procedure in the New York Times story on the hearing, here’s how The Washington Post put it: “It generally involves the breech delivery of a fetus, followed by the collapsing of its skull to permit removal.” Contrast that with how the conservative National Review described it in a recent editorial: “Partial-birth abortion involves the partial delivery of a child, the puncturing of its skull, the removal of its ‘intracranial contents,’ and then the delivery of a dead baby or extraction of its parts.” Both are technically accurate, but you decide who’s trying to fool whom.
As Congress found during its meticulous investigation, partial-birth abortion is never necessary to save the life or health of the mother. Opponents dispute that of course, but even lawyer Priscilla Smith, arguing against the federal ban, had to admit when questioned by justices that there were no statistics to verify her claim that the reduction in risk to the mother from the procedure was “significant.” It’s important to note that Congress did make an exception when a woman’s life is at risk.
If the court does reverse itself, it will likely come down to Justice Anthony Kennedy, who wrote a dissent in the 2000 case. Justice Kennedy is a marginal defender of abortion rights as outlined in Roe v. Wade, but his dissent on the partial-birth abortion procedure was clearly based on moral principle. The bad news is that during oral arguments, Justice Kennedy questioned whether the federal law was defined narrowly enough to ban only partial-birth abortion. He also wondered if a woman seeking an exemption from the ban from a judge would be able to receive one in enough time. Some might interpret Justice Kennedy’s questions as an attempt to find an excuse to retreat from his earlier position. On the other hand, perhaps he’s just covering all his bases.
Of course we shouldn’t assume that either Chief Justice John Roberts or Justice Samuel Alito would vote to uphold the ban. If they do, and if Justice Kennedy sustains his moral dissent, then we can finally put an end to this barbaric and unnecessary procedure called partial-birth abortion.
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