Jewish World Review July 3, 2000 /30 Sivan, 5760
http://www.jewishworldreview.com -- THE U.S. SUPREME COURT is determined to make abortion zealots of us all. Its latest foray into the issue, in the case of Stenberg vs. Carhart, treats abortion as a "right" of such majesty and force that no state can limit its use -- no matter how barbaric the methods -- once a doctor has cooed into a woman's ear, "This is what's best for you, dear."
Opinions drafted by Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsberg and Sandra Day O'Connor exhibit traits familiar to students of the topic. They cited selected precedents but took care not to examine the Constitution itself. They sought refuge in euphemism. They embraced dubious medical opinion. And they showered contempt on the legislative process by telling 30 states to go fly a kite.
Justice Antonin Scalia noted piquantly that the opinion deserves a place in history beside the Korematsu decision, in which the court approved internment camps for Japanese-Americans, and the Dred Scott decision, which gave the court's imprimatur to Jim Crow.
Here's the core of the controversy: Nebraska outlawed partial-birth abortion, in which a doctor dilates a pregnant woman's cervix, initiates delivery of the baby, reaches into the uterus so the child will enter the birth canal feet-first, coaxes the feet and torso into the world -- then plunges scissors into the base of the child's skull, opens the cranial cavity, inserts a tube, sucks out the brains, collapses the skull and yanks out the limp corpse.
A shaken nurse told Congress about her experience with the procedure: "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 the scissors, stuck a high-powered suction tube into the opening and sucked the baby's brains out. Now the baby went completely limp."
The pioneer of the technique, Dr. Marvin Haskell, notes that a doctor sometimes over-dilates the patient and has to hold the baby's head inside the vagina: "(T)he fetus could just fall out. But that's not really the point. The point here is you're attempting to do an abortion ... not to see how do I manipulate the situation so that I get a live birth instead."
Even though the American Medical Association and the American College of Obstetrics and Gynecology have decreed that this operation never is the sole or preferred method of abortion -- research indicates that it's more dangerous than "traditional" abortions, which themselves are more dangerous than childbirth -- Nebraska tried to appease potential critics. It agreed to permit partial-birth abortions that were "necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself."
The high court still tossed the statute away. It averted its eyes from the surgical technique, which it referred to merely as "D." And it claimed Nebraska's "health" clause didn't go far enough: The state needed to legalize butchery for women plagued with other conditions, such as depression. As Scalia noted, this logic gives "live-birth abortion free rein."
The prim, dense prose of the majority opinions obscures the sleight-of-hand required to produce the result. The court not only ignored its own precedents, it also abandoned the practice of reading state statutes as sympathetically as possible. It ignored the testimony of the two top medical associations. It established standards that make it impossible to restrict any kind of abortion performed by a licensed physician, thus repealing previous opinions that all but welcomed state regulation.
In short, five people took it upon themselves to make law for the other 280 million in the country. They acted not as a court, but as a Star Chamber. Justice Sandra Day O'Connor tried to calm nerves by claiming that Nebraska could fix its statute and win her approval. But her tortured opinion indicates otherwise.
O'Connor's vote made it possible to deliver two-thirds of any baby --
healthy or not -- and kill the child. Her vote ensured continuing discord
over the issue. Her vote demonstrated why it's better to hand such issues to
legislatures than to five verbose jurisprudes who can't bear to describe
what they have declared lawful and can't provide a single coherent reason
why they replaced the legacy of Hippocrates with that of Dr.