Dispatches

Supreme Court Dispatches

Partial-Ban Aborted

“Partial-Birth Abortion.” Not a humorist’s dream-topic. (“Two embryos walk into a bar … “) Still, a humorist can be amused at the gulf between what’s at stake in Stenberg vs. Carhart and what the public believes is at stake. Whether it is due to sensationalism in the media, radicalism of the activists, or “slippery slope” arguments of the parties, the protesters splashing around in the rain today outside the Supreme Court are under the misguided impression that Roe vs. Wade may be overturned.

The pro-lifers, with the ink bleeding down their “Abortion Is Murder” signs, are fighting a battle they lost in 1973 with Roe. This court will not hold that abortion is murder. And the women from NOW lost the battle for unfettered women’s rights in 1992 with Planned Parenthood vs. Casey. Casey was the abortion case that declined to overturn Roe, but replaced the rigid trimester scheme with the undue-burden test that allowed states more leeway in regulating abortion. Lest you think it’s just the public buying into the notion that Roe is hanging on a thread, even Justice Blackmun, who authored Roe, wrote in Casey that “all that remained between the promise of Roe and … darkness … was a single, flickering flame.” He didn’t know that the only thing the conservative Rehnquist Court values over its own conservative jurisprudence is the optical illusion of consistency in precedent, known as stare decisis (Latin for “we-can’t-overrule-Roe-without-looking-like-political-Play-Doh”).

What is at stake this morning? A curiously drafted Nebraska statute banning extremely rare late-term abortions known as D&Xs (“Intact Dilation and Extraction”). A not entirely semantic battle about the phrase “partial-birth abortion” is waged all morning by the justices, with Justice Scalia spearheading the campaign to use the loaded term while the other justices refrain. The confusion over the Nebraska law is that it may also sweep the most common abortion procedure—a D&E (“Dilation and Extraction”)—into its prohibition. Since a D&E is protected under both Roe and Casey, the only question for the court today may well be (as it was in the grandparents’ rights case earlier this term) “Why did we grant certiorari on these lousy facts?” That’s certainly Justice Scalia’s question. Justice Ginsburg makes the point several times that had the Nebraska legislature explicitly limited its ban to D&Xs, there might have been an interesting constitutional scrimmage in Stenberg.

In fact, there is barely enough air in the nine justices today to make for an interesting half-time show. There is little questioning—with Scalia, Ginsburg, and Rehnquist doing the lion’s share of the ball handling—while the others make like Clarence Thomas and mainly recline in the puffy chairs. The result is that both oral advocates have long stretches of uninterrupted time in which to stand and sink free throws. The result is that oral argument seems to drag on for days.

The D&X involves—let’s not mince words—dilation of the cervix, partial removal of the fetus, and the suctioning out of the brain so as to collapse the fetal skull, which is then removed. Most Americans oppose it. The Nebraska statute criminalizes any procedure in which the abortionist “delivers vaginally a living unborn child before killing the unborn child and completing the delivery.” The statute states that “a substantial portion” of the child must be delivered in order to violate the ban, although argument reveals this to be a tricky proposition, as the D&E involves removal of some fetal limbs in some cases. Oh, and for those of you still hanging onto your Stripper Bingo cards, contestants choosing Scalia as the first justice to say “vagina” this term come away winners.

Nebraska Attorney General Donald B. Stenberg defends the “partial-birth abortion” ban as a prohibition against infanticide. When Ginsburg asks how it can be infanticide when the fetus is not yet viable, Stenberg says that pre- and post-viability of the fetus is only one “bright line” test of the distinction between abortion and infanticide. Scalia, says it may be enough to just “look more like infanticide” because the killing is happening outside the womb.

Stenberg tosses in several free throws as he outlines Nebraska’s interests in banning D&Xs, urging that Casey did not stand for the proposition that the smallest health risk to the mother renders any abortion restriction unconstitutional. O’Connor, always worried about fine distinctions, asks how D&Xs differ from D&Es, describing both as “rather gruesome.” Judging from the photos out in the pro-life camp, this may be the understatement of the millennium, although, having once seen a photo of my own duodenum, I am less moved by graphic medical pictures than I should be.

Stenberg argues that principles of federalism demand that Nebraska’s Supreme Court (which has not yet heard this case) and attorney general (himself) should be given broad deference to construe the statute as constitutional, to which Ginsburg replies tartly that “you deserve special consideration but no more than that.”

O’Connor then points out the other problem with the Nebraska statute, which lies in the fact that it contains a broad exception in cases where the mother’s life is at risk, but not where her health is at risk. This life/health debate has played out in the drafting of the congressional “Partial-Birth Abortion Bans of 1995 and 1997” (twice vetoed by President Clinton) since pro-life advocates insist that a mere health exception will always eviscerate the rule.

Breyer asks if there are any cases in which a D&E might prove more harmful to a woman than a D&X. Souter wonders whether the Nebraska law has a gray area in which D&Es might be implicated. Stevens reads from testimony indicating that for between 10 and 20 women in Nebraska last year, a D&X would have been more medically appropriate than the D&E. Stenberg’s response sounds alarmingly like, “Twenty out of 200 ain’t bad.” Souter asks whether he would make the same argument if the mother’s life, rather than health, were on the line.

Ginsburg points out that Casey protected two governmental interests in regulating abortion: the mother’s health and the potential life of the fetus. She says the partial-birth abortion ban does not promote a woman’s health and adds that it cannot preserve the fetus since Nebraska concedes that there is always another way to terminate the pregnancy.

Simon Heller represents Leroy Carhart, the abortion doctor challenging the constitutionality of the Nebraska ban. He is what Seinfeld would characterize as a “soft talker,” which may contribute to his soporific effect on the court. Rehnquist reminds Heller that the Supreme Court has the duty to uphold the most constitutional interpretation of an ambiguous statute. Heller replies that this is only so where all interpretations are reasonable, but that no reasonable reading of the Nebraska ban confines it to a D&X. He starts to explain how the statute sweeps in D&Es, but is interrupted as Scalia launches into the first of 12 verses of the “I Hate Abortion” blues.

Verse 1 features a description of the D&E as “pulling out a leg and tearing it off outside the womb,” which he says is not “delivering an unborn living child” under the statute. Verse 3 is about “dismembering it before delivering it,” and Verse 8 (the sing-along) involves asking Heller to concede to the phrase “partial-birth abortion.” (Heller will not.) Scalia only uses the word “child” in his questions this morning, deliberately evoking unspoken images of Elmo dolls and little pink socks and superimposing them against his grotesque lobsterfest rhetoric of torn legs and battered bones. When Heller asserts that Nebraska has advanced no state interest sufficient to override a mother’s privacy rights under Roe, Scalia asks incredulously whether the state doesn’t have an interest in protecting against “the coarsening of manners.” (Although this might argue for a ban on Kid Rock.) He invokes the ancient Greeks and their penchant for child sacrifice. Scalia is obviously upset and sickened by abortion. He is also palpably alone. As his one-on-one with Heller drags on,  you cannot shake the feeling that he is writing his dissent. As it was in Casey, it promises to be a scorcher.

The pro-life camp is praying for Justice O’Connor to make the right decision as I leave the court. I’m not sure why they have selected hers as the decisive vote, since Casey made it plain that she is not inclined to overrule Roe. The sullen silence among the justices today does not foreshadow a constitutional turning point with Stenberg. In fact, it highlights the extent to which this court glumly drags Roe around like a shred of toilet paper under its shoe. As it balances the rights of mothers against the rights of the unborn, most of this Supreme Court would like nothing more than the right to be free from the legacy of Roe vs. Wade.