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On April 18 the United States Supreme Court, in the case of Gonzales v. Carhart, declared the federal ban on partial birth abortion to be constitutional. This type of late-term abortion, technically known as “intact dilation and evacuation” abortion, was vividly described in the court’s opinion by a nurse who witnessed the procedure on a 26 1/2-week, third-trimester fetus:
“Dr. Haskell went in with forceps and grabbed the baby’s legs and pulled them down into the birth canal. Then he delivered the baby’s body and the arms--everything but the head. The doctor kept the head right inside the uterus....
“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....
“He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.”
The majority opinion for the court was written by Justice Anthony Kennedy and signed onto by Chief Justice John Roberts, Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. The 5-4 opinion, with Justices Ruth Bader Ginsburg, John Paul Stevens, David Souter, and Stephen Breyer in dissent, found that the law was not unconstitutionally vague or overbroad, defects that the court had found in its previous partial abortion case in 2000, Stenberg v. Carhart, which had invalidated Nebraska’s ban on the procedure among other reasons because it was broad enough to not only forbid partial birth abortions but also standard “dilation and evacuation” abortions, which are the most common type of late-term abortion and constitutionally protected under applicable Supreme Court precedent.
Here’s how the court describes that still-constitutionally-protected type of abortion: “The doctor, often guided by ultrasound, inserts grasping forceps through the woman’s cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes...The doctor examines the different parts to ensure the entire fetal body has been removed.”
The court also ruled that the partial-birth-abortion-ban’s lack of a general health exception for the mother does not impose an unconstitutional burden on the so-called abortion right, even though the court assumed that “the Act’s prohibition would be unconstitutional under controlling precedents, if it subjected women to significant health risks.”
Justices Thomas and Scalia indicated in a separate concurrence that they are prepared to overturn Roe v. Wade since it has no basis in the Constitution. Justice Kennedy’s was clearly the swing vote here, which is why he wrote the opinion for the Court, and he did not want to overturn any of the precedents, not Roe, not Planned Parenthood of Southeastern Pa. v. Casey, the 1992 decision reaffirming Roe, and not even the previous partial birth abortion decision, which while remaining on the books has effectively been gutted now that Justice Alito has replaced former swing-vote Sandra Day O’Connor. Better to gut a mistaken decision than to gut an unborn child.
We just observed the 150th anniversary of the Supreme Court’s Dred Scott decision, which declared slavery a constitutional right such that Congress was powerless to restrict it. At the time, 1857, “Uncle Tom’s Cabin” was the 19th century’s best-selling novel which vividly portrayed the evils of slavery. It took a Civil War (which Lincoln called “this big war” which the “little lady” Harriet Beecher Stowe, the author of “Uncle Tom’s Cabin,” had made) and the 13th Amendment to the United States Constitution to ultimately abolish slavery. Perhaps public awareness of partial birth abortion and similar gruesome procedures can ultimately lead to the decisive overturning of Roe v. Wade and reasonable state restrictions on the lethal practice of abortion.
Dwight Duncan is a professor at Southern New England School of Law. He holds degrees in both civil and canon law.