Thanks to C-SPAN, a vital public service, I was able to see and hear on Nov. 8 the two hours of oral arguments at the Supreme Court on one of the most persistently passionate controversies in the nation partial-birth abortion; or, as its medical practitioners call it, intact dilation and extraction.
What fascinated me throughout the debate and the reactions of the justices was, as George Orwell put it, the way language can be, and is so often used, "as an instrument which we shape for our own purposes." Only rarely did any participant speak plainly about the procedure.
In his essay "Politics and the English Language," Orwell said, "What is above all needed (in honest speaking) is to let the meaning choose the word, and not the other way about."
During the two hours, I often heard references to "fetal demise." What they were actually talking about, some of us would say, is the killing of a human being.
That plain intent of abortion slipped in briefly when Solicitor General Paul Clement, speaking for the government, said the important issue is whether this form of abortion "is to be performed in utero or when the child is halfway outside the womb."(A child? Where?)
Justice John Paul Stevens quickly interrupted: "Whether the FETUS is more than halfway out," he corrected the solicitor general.
"Some of the fetuses, I understand in the procedure," Justice Stevens added, "are only 4 or 5 inches long. They're very different from fully formed babies."
Babies had again crawled into the discussion but not for long. The abortion procedure at issue is D&X, intact dilation and extraction, which removes babies from existence. Years ago, the late Sen. Daniel Patrick Moynihan, who was for abortion rights, nonetheless called this D&X procedure, "only minutes from infanticide."
And in a previous Supreme Court decision rejecting an attempt to ban partial-birth abortion, Justice Anthony Kennedy, dissenting from that decision, called D&X abortion "a procedure many decent and civilized people find so abhorrent as to be among the most serious crimes against human life."
But during the Nov. 8 oral arguments on D&X, Justice Kennedy possibly indicated some doubts as to whether he still believes this and his ultimate conclusion may well decide the case.
To keep the discussion at the High Court that day within the bounds of proper discourse, Justice Ruth Bader Ginsburg cautioned: "We're not talking about whether any fetus will be preserved by this legislation.
The only question we're raising is whether Congress can ban a certain method of performing an abortion."
That D&X "method" requires that during the abortion, the fetus (if you like) comes out intact but with the head inside the uterus and too large to emerge on its own. The doctor must then crush the skull, removing its "intracranial contents," thereby killing the patient. I use the term "patient," as it appears in a medical textbook that is neither pro-choice nor pro-life "The Unborn Patient: Prenatal Diagnosis and Treatment" by Harrison, Globus, Filly (W.B. Saunders Co., 1991):
"The concept that the fetus is a patient, an individual whose maladies are a proper subject for medical treatment as well as scientific observation, is alarmingly modern ... Only now are we beginning to consider the fetus seriously, medically, legally and ethically."
This has not yet happened at the Supreme Court, where Roe v. Wade is still intact. During the oral arguments, Solicitor General Clement did not refer to the fetus as a patient. Instead, he emphasized that D&E, dilation and evacuation, by which 95 percent of second-trimester abortions are performed, would not, in any case, be banned thereby providing alternative successful abortions to D&X. Clement called D&E "the gold standard of abortions."
In the usual D&Es, the fetus (or patient) comes apart while still in the uterus or has to be dismembered while still there. I once covered a lawsuit in which an operation-room nurse, who had to assemble the dismembered pieces, refused in an act of conscience and revulsion. She was fired, and claimed her dismissal was unjust. She won the case. That nurse, however, did not consider this alternative method of abortion "the gold standard."
George Orwell said of the language of "orthodoxy" that it "seems to demand a lifeless, imitative style." That was what I heard nearly all the two hours of "orthodox" oral argument at the Supreme Court on whether banning D&X would be unconstitutional.
Whatever the decision, doctors will still be able to dismember the baby. Yes, the baby.