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Jewish World Review Sept. 21, 2004 /6 Tishrei, 5765

Nat Hentoff

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Kerry's judicial ‘independence’ has litmus tests | Last month, former NARAL Pro-Choice America president Kate Michelman told National Public Radio she resigned from her position to devote her considerable energy to the election. "It's the most important presidential election of my lifetime," she said, "and I want to bring to bear everything I've ever done in my life to helping John Kerry become the next president."

It's easy to see why she supports Kerry so strongly. In a July 22 interview with ABC News anchor Peter Jennings, Kerry said: "Let me tell you very clearly that being pro-choice is not pro-abortion."

A consistent defender of Roe v. Wade during his 20 years in the Senate, Kerry nonetheless told Peter Jennings that "in the fertilization process ... a human being is first formed and created, and that's when life begins."

But doesn't abortion kill a human being? Kerry says that Roe v. Wade sets the standard for viability "as to whether or not you're permitted to terminate a pregnancy, and I support that." (Note the euphemism "terminate.") But isn't human life a biological continuum from the very beginning?

Kerry has even voted against bills, which, if passed, would have ended partial-birth abortion. And he voted against the Unborn Victims of Violence Act, which recognizes the unborn child as a victim when he or she is injured or killed in the commission of a violent federal crime. The law specifically exempts all forms of legal abortion from any penalty under this legislation. The Senate adopted the measure 61-38.

Polls show that about 80 percent of the public agrees with the "Laci and Conner's" law (named after the pregnant mother and unborn son allegedly murdered by husband Scott Peterson). And 18 states have fetal homicide laws that designate unborn children as victims throughout the extent of prenatal development.

But it's Kerry's unwavering opposition to the Partial-Birth Abortion Ban Act that especially underscores his loyalty to "pro-choice" doctrine. (So much for his concern about the "viability" standard for terminating life.) He voted six times against the ban on partial-birth abortion. (The president signed the ban into law in November 2003.)

On Aug. 26, 2004, New York Federal Judge Richard Conway Casey, during his decision on the constitutionality of the law, described partial-birth abortion as a "gruesome, brutal, barbaric, and uncivilized medical procedure ... the fetus's arms and legs have been delivered outside the uterus while the fetus is still alive. With the fetus's head lodged in the cervix, the physician punctures the skull with scissors or crushes the head with forceps."

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During a hearing before Casey's decision, he asked a doctor who performs partial-birth abortions if he "had any caring concern for the fetus whose head you were crushing." The answer was "no."

Casey, citing testimony from a fetal neurobiology expert that the fetus experiences extreme and excruciating pain during partial-birth abortion, asked another doctor who does these late-term abortions, "Do you tell the mother the fetus will feel pain?" "I never talked to a fetus," she said angrily.

Nonetheless, the judge ruled that the law banning partial-birth abortion is unconstitutional because the ban does not include a health exception as required by the Supreme Court in Doe v. Bolton, decided on the same day as Roe v. Wade (Jan. 22, 1973).

The exception for a woman's health, as very broadly ruled by the Supreme Court in the Doe decision (which struck down a Georgia law essentially requiring three physicians to approve of an abortion), covers "all factors — physical, emotional, psychological, familial, and the woman's age."

According to this highly permissive wide-ranging standard, allowing the "brutal, barbaric and uncivilized" procedure of partial-ban abortion characterizes how this nation, under our rule of law, describes itself as civilized.

In the Feb. 26, 1997, New York Times, Ron Fitzsimmons, the executive director of the National Coalition of Abortion Providers, disconcerted his colleagues by estimating that up to 5,000 partial-birth abortions were performed annually; and, he added, "in the vast majority of cases" on "a healthy mother with a healthy fetus that is 20 weeks or more along."

But, those numbers are obviously a very small proportion of the number of abortions since 1973. Using the figures of the Alan Guttmacher Institute (affiliated with Planned Parenthood) through the year 2000, the National Right to Life Committee estimates "1,312,990 abortions for 2001-03; and factoring in a possible 3 percent undercount (that) AGI estimates for its own figures, the total number of abortions performed in the U.S. from 1973 to 2003 equals 44,670,812."

One can argue whether those are exact figures, but clearly, many millions of unborn Americans will not be voting this year. Conceivably, if it's a close election, enough of them might have been voters for John Kerry to decide the Electoral College vote. And who knows whether one or more of the disappeared might have cured any presently life-endangering conditions?

But on Jan. 24, 2004, John Kerry pledged: "I will support only pro-choice judges to the Supreme Court." Kerry said this is not a litmus test. However, is this his tribute to judicial independence?

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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