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The Weakest Link

30 April 2007     Vol. 9 / No. 15

Dear Colleague,

On 18 April 2007, the United States Supreme Court voted 5-4 to uphold the Partial-Birth Abortion Ban Act. This is the first judicial restriction on an abortion procedure since the tragic Roe vs. Wade decision in 1973, and as such is to be celebrated. By itself, it makes just a minor breach in the "right to privacy" seawall invented by the Blackmun court to justify all abortions. But through this breach will flow streams of reason that will help turn the tide against abortion-on-demand and in favor of the sanctity of life.

Abortion advocates understand this, which is why they have busied themselves the past few days hysterically denouncing this decision by Justices John Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito and, yes, their one-time darling Anthony Kennedy.

Pro-lifers have long awaited the advent of a fifth pro-life justice on the Supreme Court. But what about Justice Kennedy himself? Now that he has come to oppose one kind of abortion, might he go further? Could he turn out to be the vote that overturns Roe v. Wade? What are we to make of … the weakest link?

Steven W. Mosher


The Weakest Link

by Steven Mosher and Colin Mason

Justice Anthony Kennedy has not been a bastion of strict constructivist thinking, nor is has he compiled a pro-life or pro-family record on the court.  So it comes as a pleasant surprise to find his name among the five justices who voted to uphold the ban on partial birth abortion.  But an even bigger surprise is in store for those who actually read the Gonzales v. Carhart decision handed down on April 18.  The opinion for the majority was written by none other than Justice Kennedy, who is by far the weakest link in an otherwise solid chain of pro-life justices stretching from Clarence Thomas and Antonin Scalia to Samuel Alito and John Roberts.

Opinions are assigned by Chief Justice Roberts, and giving this one to Kennedy may be regarded as a brilliant tactical move.  What better way to stiffen Kennedy’s spine than to have him research and write about this barbaric practice?

Passages such as the following must have been even more difficult for him to write than they are for us to read:  The abortionist (his assistant reported) "delivered the baby’s body and arms — everything but the head." At that point, "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. … The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out."

Yet the full opinion is so narrowly drawn that it is impossible to assess whether Kennedy’s views on abortion have changed in any other respect.  The ban will not serve as a check on the 1.1 million abortions performed in this country–nor even necessarily stop all partial-birth abortions.  In fact, the Partial Birth Abortion Ban forbids only the “intact D&E procedure,” which it defines as the act of partially delivering the baby with the intent of killing him or her.  If the abortionist does not deliver a certain minimum extent of the baby’s body before killing it, the ban does not even apply.  If this does not seem like much of a restriction on abortion, that is because it isn’t.

Yet how could Kennedy’s previous views on abortion have survived a close encounter with this barbaric procedure?  It would seem impossible to confront the reality of partial birth abortions, and not be unmoved by the plight of millions of babies who have been dismembered while still in utero. 

Certainly the partisans of abortion were quick to make this connection, that’s why Dr. Carhart of Nebraska, along with the Planned Parenthood Federation of America, brought suit in the first place.  They understood that the principle that it planted–that unborn children could not simply be torn apart at will, in whatever fashion was most convenient to the abortionist–posed a threat to abortion-on-demand.

This also explains why Justice Ruth Bader Ginsburg wrote such a furious dissent.  "The law saves not a single fetus from destruction," she noted scathingly, while "put(ting) a woman’s health at greater risk."  Clearly Kennedy disagrees with this assessment, since he cites empirical evidence that the procedure is dangerous, traumatic to the mother, and medically unnecessary.  From his graphic descriptions of the procedure itself, he now realizes that it also kills babies.

Here, then, is the reason that someone as philosophically adrift as Kennedy might craft such a ruling.  His opinion involved research into the history of the partial-birth abortion debate, as well as research into the procedure itself, and the resulting text suggests a strong visceral reaction.  Kennedy speaks of a doctor “pierc[ing] the skull and vacuum[ing] he fast-developing brain of [the] unborn child, a child assuming the human form.”  Elsewhere he quotes Congress’s language, saying that “Congress determined that the abortion methods [the Ban] proscribed had a ‘disturbing similarity to the killing of a newborn infant.’”  Again, he insists: “Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn” (emphasis added).

Now I don’t want to read too much into one phrase, but if Kennedy has begun to reflect on the need "to promote respect for life, including the life of the unborn," then his thinking on this issue has already begun to change.  He cannot help but have noted the gruesome resemblance between partial birth abortion and infanticide.  And how can he wish to promote respect for unborn human life, as he writes, and yet continue to countenance the daily dismemberment of 4,000 unborn Americans, on the other.  He surely knows now, if he did not before, that unborn babies "assume … the human form" within a few weeks of conception.

The major media, which has never seen an abortion it didn’t like, has warned that this Supreme Court decision signals the end of Roe v. Wade.  This is wild exaggeration.  But if Kennedy thinks through the logic of his arguments, they may be more right than they realize.  And he will surely be encouraged in his rethinking by the four staunchly pro-life members of the Supreme Court. 

If Kennedy does begin coming down more firmly on the side of Life, then this would indeed be something to rejoice about.  The Partial Birth Abortion Ban may have begun to put Roe v. Wade on a path to absolute extinction.

Steven Mosher is the President of PRI

Colin Mason is the Media Director at PRI.

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