Jewish World Review March 16, 2006 / 16 Adar, 5766

Paul Greenberg

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Unsettling | Nothing is settled till it's settled right.

That's not a legal dictum, it's common sense, mother wit, moral imperative . . . whichever description you prefer. It is only lawyers, judges, politicians and such who speak with assurance about settled law, meaning settled for all time, now and forever, beyond dispute or change. So shut up, they explain.

There's a phrase for such certitude, probably several, but the one that comes immediately to mind is from Ecclesiastes: Vanity of vanities!

For nothing is less settled than law when it runs head-on into reality. You can bet something will bend, and it won't be reality. Oliver Wendell Holmes called it responding to the "felt necessities of the time."

Those who speak of Settled Law may use the phrase only when the legal question at issue has been "settled" to their satisfaction for the moment, which they tend to confuse with forever.

That's why some on the Senate Judicial Committee kept trying to get His Honor Samuel A. Alito to agree that Roe v. Wade was "settled law." It was a way of getting the next associate justice of the United States to prejudge any cases involving abortion — and commit himself to supporting it.

His inquisitors uttered the phrase Settled Law as if they were citing Holy Writ. (A typical sally, provocation and leading question: "You do not agree that ( Roe v. Wade) is well settled in court?" — California's Dianne Feinstein.)

Never mind that the meaning of Roe v. Wade itself has been anything but settled since it was first handed down. It keeps growing, mutating, metastasizing. Like any other tumor.

Lest we forget, the Roe decision was going to be modest in its reach when it was handed down on Jan. 22, 1973. No less an authority than its author, Mr. Justice Harry Blackmun, asserted in a private memo that the court was not creating "an absolute right to abortion."

That naive interpretation of what he and his colleagues had wrought was echoed publicly by Chief Justice Warren Burger: "Plainly, the court today rejects any claim that the Constitution requires abortion on demand."

And yet, plainly, over the decades to come, abortion on demand has become the law of the land — and one of the most divisive, corrosive and continuing of American issues. For when it comes to interpreting judicial rulings, each generation is at the mercy of the next, with its own felt necessities.

There is no clearer reflection of our generation's hunger for the imagined certainties of the past than the desire to return to the "original intent" of the founders, however much the founders themselves might have differed over their intent.

Just so, this era's enthusiasm for individual autonomy is reflected in Roe v. Wade and its judicial progeny, with their emphasis on "abortion rights," whatever that may mean for the rights of the most innocent and vulnerable of us. If we even recognize they have any rights at all.

Roe keeps running head-on into moral — and biological — reality. And must adapt. For the law does not stand still any more than the world does. It advances or regresses.

By 2000, in Stenberg v. Carhart, the law had regressed to the point where it was upholding the form of semi-infanticide known as partial-birth abortion. In that procedure, the baby/fetus is killed while being partially delivered. Writing for the 5-to-4 majority, The Hon. Stephen Breyer ruled that no state could prevent an abortionist from using this method, however gruesome and painful it may be. The Constitution may forbid cruel and inhuman punishment, but only for the guilty.

It is wholly understandable why its advocates would devise euphemisms for this barbarity — like D&X for Dilation and Extraction — rather than use plain English. For this form of partial-birth abortion involves crushing the baby's skull and then removing the contents, that is, the brain, before completing the delivery/abortion.

In a feat of psychological removal from their own actions, its practitioners have no problem performing the procedure, only in describing it in plain English. The one common denominator of abortionists seems to be their bloodless, latinate vocabulary when under oath. (They "disarticulate the calvarium" rather then cut off the baby's head.)

The same foggy language now has enveloped those opinions out of the Supreme Court favoring abortion, as if their authors know very well what is happening but would prefer not to face it, or at least not have the rest of us face it. The imprecision of their language is a kind of shroud, covering the indecency their law masks.

Stenberg v. Carhart has to be the cruelest decision rendered by the Supreme Court of the United States since Dred Scott. Indeed, it is crueler, for in his infamous decision and provocation in 1857, Chief Justice Taney never denied that Negro slaves were persons; he asserted only that they were not and could never be citizens. (Now there was a true believer in Original Intent!)

But under current law, the unborn aren't even persons. If slaves were but property, the unborn are . . . nothing. No state legislature, no popular referendum, nothing can protect them from the most gruesome or painful of deaths. So it is written — in Stenberg v. Carhart.

The murder of a slave was still considered murder in the antebellum South; today the killing of the unborn is a constitutional right. We definitely have come a long way. Because by now we're looking up that slippery slope.

But times change and so does the law — sometimes even for the better. And so it happens that the U.S. Supreme Court, complete with two new members, now has decided to entertain a challenge ( Gonzalez v. Carhart ) to this, the most barbaric form of abortion yet.

Supporters of the earlier decision sound shocked. It's as if they hadn't realized that it's possible to raise the sensibilities of a society, not just lower them. It must all be very . . . unsettling.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.

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