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Speaking our language

Abortion | The Supreme Court's ruling on partial-birth abortion-and especially its clear description of the horrifying procedure-may give momentum to pro-life legislation across the country

Issue: "Opium wars," May 12, 2007

Was the U.S. Supreme Court's 5-4 abortion decision on April 18 an early Mother's Day gift to American women (and their unborn children)? When Justice Anthony Kennedy, upholding with four other justices the federal ban on partial-birth abortion in the case, Gonzales v. Carhart, wrote that "respect for human life finds an ultimate expression in the bond of love the mother has for her child," was he writing a Hallmark card or a hallmark decision that will lead to the saving of millions of lives?

Analysts of language and law say Kennedy's opinion suggests that a slim Court majority will now talk plainly about the real relationship between the two human beings operated on during an abortion-a mother and an unborn child. In the 39-page opinion Kennedy, joined by justices John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito, repeatedly referred to a "mother" rather than a "woman," and a "child" rather than a "fetus."

Kennedy also asserted that abortion is a moral decision, not just a medical one. He described abortions in plain language, not medical jargon. He explicitly acknowledged that some women suffer after their abortion. He wrote, "A mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."

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Clarke Forsythe of Americans United for Life (AUL) was impressed by "more explicit language than has ever been used before on the importance of informed consent." Virginia State Solicitor General William Thro said, "We're seeing rhetoric and phrasing we've never seen before." Kennedy was far more vivid than he was in Planned Parenthood v. Casey, a 1992 plurality opinion he tri-wrote with Justices Sandra Day O'Connor and David Souter: "In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion."

The language transformation got the attention of University of San Diego professor Anne Hendershott, author of The Politics of Abortion. When Kennedy dissented in Stenberg v. Carhart, a 2000 case that struck down a Nebraska ban on partial-birth abortion, "he didn't give us any confidence that he'd stay on the pro-life side. In Gonzales, there's no shakiness. Kennedy was strong . . . I think he had a change of heart."

Kennedy also wrote that "severe depression and loss of esteem can follow" abortion. That language, which marks the first time the Court has so explicitly recognized women's post-abortion suffering, shocked Justice Ruth Bader Ginsburg, who wrote a dissent attacking Kennedy's use of "an anti-abortion shibboleth" and slammed him for resurrecting "ancient notions about women's place in the family and under the Constitution-ideas that have long since been discredited."

A completely unrestrained right to abortion, she argued, is central to women's "ability to realize their full potential. " But Forsythe noted that Kennedy's reverence for motherhood is "unobjectionable to millions of Americans. I wonder for the future whether Ginsburg's rant will speak only to a tiny number of certain feminists who don't represent American feminism."

The impact of Gonzales in the states may not be known for a year, since most legislatures are winding down for this year or have already closed their sessions. Still, the decision had an immediate effect in several ways:

  • Five days after the ruling, the Supreme Court vacated and remanded to the 4th Circuit Court of Appeals Herring v. Richmond Medical Center for Women, a case argued by Virginia Solicitor General William Thro concerning a law that bans "partial-birth infanticide" in his state. The statute makes it a criminal offense to kill "a human infant who has been born alive, but who has not been completely extracted or expelled from its mother." In 2005, the appeals court struck down the law, 2-1, but with the new Supreme Court precedent Thro said, "I'm optimistic that the 4th Circuit will rule in our favor and uphold the Act."
  • In New Jersey, pro-life activists are seeking enforcement action against Metropolitan Medical Associates, an abortion business that reopened in March after a weeks-long closure related to a botched abortion in which a woman nearly died. In September 1996, Metropolitan admitted to performing 1,500 partial-birth abortions each year, according to LifeNews.com editor Steve Ertelt. The day after the Gonzales ruling, New Jersey Right to Life and other pro-life groups held a press conference outside the clinic, calling on New Jersey U.S. Attorney Christopher Christie to enforce the upheld federal law.
  • In Michigan, Gonzales may alter the outcome of Northland Family Planning Clinic v. Cox, a case involving the state's Legal Birth Definition Act. That law doesn't prohibit any specific abortion procedure but defines when "birth" has legally occurred and outlaws the killing of a born child. Ed Rivet, legislative director for Right to Life of Michigan, summarized the law: "Once the child has begun to leave the mother's body, it's too late for an abortion."Pro-abortion activists immediately challenged the law, and the case is now before the 6th Circuit Appeals Court. Gonzales provides a new framework by which state and federal courts must judge abortion legislation: Not only is the mother-child bond crucial, but the government has an interest in preserving the public's perception of doctors as healers and not killers. AUL staff counsel Mailee Smith summarized Kennedy's message: "The Supreme Court will not strike down abortion regulations simply because they are abortion regulations."
  • In Kansas, Gonzales gave pro-life activists fresh reasons to pursue slippery late-term specialist George Tiller. Claiming to save mothers' "mental health," the abortionist routinely performs third-term abortions that are actually illegal under the letter of a Kansas law banning post-viability terminations. Tiller operates under cover of a non-binding 2000 interpretation of the law by the state justice department, which said that without a "mental health exception" the law would be unconstitutional. But the Supreme Court in Gonzales upheld a protection for unborn children that did not include a health exception.

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