In considering the blind spots of other generations or cultures from a safe
distance, it becomes clear that there is no atrocity, no horror, no injustice
which human beings, under some circumstances, will not defend, or even posit
as a positive good. Present an injustice or atrocity in a way that appeals to
a combination of perceived self–interest, ideological fit, and group superiority,
and all classes of human beings, regardless of intelligence, educational level,
or social position, will likely embrace it.

The atrocities we can critique from afar frequently fail to illumine our minds
sufficiently to steer us away from those closer at hand, for self–interest,
ideology, and pride are far more powerful blinders than we realize. Certainly
it is difficult for a society as divided as contemporary America to come to
a shared understanding on fundamental ethical issues.

Justice Antonin Scalia declares in Stenberg v. Carhart that he is “optimistic
enough to believe” that the decision constitutionally protecting partial–birth
abortion will “one day . . . be assigned its rightful place in the history of
this Court’s jurisprudence beside Korematsu [validating internment of
Japanese–Americans during World War II] and Dred Scott [holding white
supremacy and racial slavery as fundamental tenets of American constitutionalism].”
Justice Scalia is hoping that one day we will be as removed from the abortion
controversy as we are today removed from past controversies over slavery and
the internment of Japanese–Americans, and that this distance will be the consequence
of having clearly and definitively rejected the injustice in question.

The alternatives to Justice Scalia’s “optimism” are either 1) to accept the
viewpoint that partial–birth abortion is legally and ethically acceptable, or
2) to fear that America will never reach the place where it clearly rejects
such horrific forms of killing. There have been, after all, empires, nations,
regimes, and peoples that went through their entire history without ever turning
from their particular injustices and atrocities. There is no guarantee of justice
being realized in history—including American history—and we cannot be confident
that Justice Scalia’s optimism will be vindicated.

Stenberg is historic because it constitutionally validates and protects
an extreme and horrific form of abortion bordering on infanticide, while placing
this validation in the context of explicitly gruesome descriptions of the various
forms of late–term abortion. The legal issues and factual background of Stenberg
forced each Justice to confront the raw facts of precisely how abortion brings
about the destruction of the human fetus.

Stenberg centered on various methods of post–fifteen–week abortion. The most common
method of abortion at this stage, dilation and evacuation (D&E), generally
involves the use of surgical instruments to dismember the fetus. Because of
a technical point regarding interpretation of the Nebraska statute, the majority
in Stenberg felt obligated to emphasize, in clinical language, that D&E
involves pulling “a portion of the fetus through the cervix into the birth canal,”
where the “traction” of the surgical instrument and the cervical opening produces
dismemberment. Just in case anyone could miss the meaning of the majority’s
clinical description, Justice Anthony Kennedy’s dissent translated this into
lay language:

The fetus, in many cases, dies just as a human adult or child
would: it bleeds to death as it is torn from limb to limb. . . . The fetus can
be alive at the beginning of the dismemberment process and can survive for a
time while its limbs are being torn off. . . . Dr. [Leroy] Carhart [the abortionist
who challenged Nebraska’s partial–birth ban] has observed fetal heartbeat .
. . with “extensive parts of the fetus removed,” . . . and testified that mere
dismemberment of a limb does not always cause death because he knows of a physician
who removed the arm of a fetus only to have the fetus go on to be born “as a
living child with one arm.” . . . At the conclusion of a D&E abortion .
. . the abortionist is left with “a tray full of pieces.”

Under Roe v. Wade (1973) and Planned Parenthood v. Casey (1992),
the states are powerless to prohibit D&E, since it is the most common method
of abortion after fifteen weeks, and those cases mandate elective abortion until
viability, and “health–indicated” abortion until birth. However, when abortion
doctors in the early 1990s developed a new method of abortion—denominated variously
as dilation and extraction (D&X), intact D&X, or intact D&E—the
states and Congress reacted with extensive legislation activity prohibiting
“partial–birth abortion.” The essence of this new method was to use obstetrical–type
methods to deliver the fetus into the birth canal, with the exception of the
head. The physician would then employ what is clinically known as a “head reduction
procedure” on the often still–living fetus, and then deliver a relatively intact,
but dead, fetus. Once again, Justice Kennedy’s dissent translates the procedure
into ordinary language:

The fetus’ arms and legs are delivered outside the uterus
while the fetus is alive; witnesses to the procedure report seeing the body
of the fetus moving outside the woman’s body. . . . At this point, the abortion
procedure has the appearance of a live birth. As stated by one group of physicians,
“as the physician manually performs breech extraction of the body of a live
fetus, excepting the head, she continues in the apparent role of an obstetrician
delivering a child.” . . . With only the head of the fetus remaining in utero,
the abortionist tears open the skull. According to Dr. Martin Haskell, a leading
proponent of the procedure, the appropriate instrument to be used at this stage
of the abortion is a pair of scissors. . . . Witnesses report observing the
portion of the fetus outside the woman react to the skull penetration. . . .
The abortionist then inserts a suction tube and vacuums out the developing brain
and other matter found within the skull.

Justice Clarence Thomas’ dissent contains the testimony of a nurse who had
observed such an abortion:

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
up 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 reactions of the Court majority to the abortion methods in question exemplified
the fact that human beings can justify anything. Justice Stephen Breyer, writing
for the majority, admitted that his descriptions of abortion procedures “may
seem clinically cold or callous to some, perhaps horrifying to others.” Justice
John Paul Stevens (joined by Justice Ruth Bader Ginsburg) stated: “Although
much ink is spilled today describing the gruesome nature of late–term abortion
procedures, that rhetoric does not provide me a reason to believe that
the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome,
or less respectful of ‘potential life’ than the equally gruesome procedure [D&E]
Nebraska claims it still allows.” Justice Stevens labeled it “irrational” to
ban partial–birth abortion but not D&E, despite the fact that it is the
Court’s own precedents that made it impossible to ban D&E. Justice Ginsburg
(joined by Justice Stevens) noted that “amidst all the emotional uproar caused
by an abortion case,” it should be remembered that the prohibition of partial–birth
abortion would “not save any fetus from destruction,” and anyway that D&E
abortion “is no less distressing or susceptible to gruesome description.” Justices
Stevens and Ginsburg thus used the fact that D&E abortion is horrific, yet
clearly protected by Roe and Casey, not as a reason to question
Roe and Casey, but instead to belittle as “irrational” or anti–Roe
any attempt to prohibit the killing of a child partially delivered outside of
the mother’s body. Having forced the nation to swallow elective dismemberment
of late–term unborn children, these Justices declared it “irrational” and unconstitutional
to resist partial–birth abortion.

The hardening of the abortion right, like the hardening of the hearts of the
Justices, was visibly on display in Stenberg. The most significant legal
issue was whether Nebraska’s prohibition of partial–birth abortion was unconstitutional
because it failed to provide a health exception. Nebraska argued that a health
exception was unnecessary because partial–birth abortion was never necessary
for the health of the mother. Nebraska’s position was buttressed by various
statements of the American Medical Association, which had previously supported
a federal version of the ban on partial–birth abortion, and which after expert
study had been unable to identify any circumstance where partial–birth abortion
was the only appropriate procedure. Similarly, a prior statement of the American
College of Obstetricians and Gynecologists had concluded that it “could identify
no circumstances under which [D&X] would be the only option to save the
life or preserve the health of the woman.”

Further, even the abortion doctors who had testified in favor of D&X abortion
in fact had never used the technique, leading Justice Kennedy to label their
testimony a “courtroom conversion.” The most the majority could say, after reviewing
opposing medical briefs, was that although there were no controlled medical
studies, and although medically safe alternatives were always available, the
disagreement by respectable medical opinion as to whether D&X was ever or
generally safer to some degree made it constitutionally mandatory that
the individual abortion doctor be allowed to select D&X abortion. Thus,
although Justice Sandra Day O’Connor noted that an appropriately worded statute
with a health exception might be constitutional, Justice Kennedy explained that
such a statute would not prohibit a single partial–birth abortion, for given
the Court’s approach every individual physician would have to be permitted to
determine whether there were “health” reasons for a partial–birth abortion.

The Court further interpreted Nebraska’s statute as potentially applicable
to D&E abortion, and unconstitutional for that reason. This holding was
far less significant in itself, since such a defect could be effectively cured
by subsequent legislative amendment. More significant was the Court’s return
to its pre–Casey jurisprudence under which it typically interpreted abortion–related
statutes to assure their unconstitutionality. Thus, the Court in Stenberg
deliberately chose to interpret Nebraska’s statute as applicable to D&E
abortion despite a contrary interpretation by the State Attorney General and
a plausible contrary statutory construction presented in the dissent of Justice
Thomas. The Court, as it had prior to Casey, refused to apply the usual
principle that laws should be interpreted to avoid constitutional difficulties,
thereby illustrating a unique hostility to laws regulating abortion.

Stenberg represented a significant hardening of the abortion rights
position of Justice O’Connor. The Stenberg dissenters repeatedly cited
and quoted Justice O’Connor’s abortion opinions from the 1980s, in which she
had criticized the Court for operating as “the nation’s ex officio medical board
with powers to approve or disapprove medical and operative practices and standards
throughout the United States.” She had then emphasized the superior position
of legislatures over courts to make such factual medical judgments, argued for
the right of states to regulate abortion despite the views of medical organizations
on “the physical safety of a particular procedure,” and complained of
“an unprecedented canon of construction under which in cases involving abortion
a permissible [constitutional] reading of a statute is to be avoided at all
costs.” But Justice O’Connor’s prior abortion opinions did not prevent her from
adhering in Stenberg to all that she had previously criticized, and now
in a context far more explicit as to the underlying horror of late–term abortion.

In 1992, Justices Kennedy, O’Connor, and
David Souter had banded together to issue a joint opinion reaffirming the essentials
of Roe on the grounds of adhering to precedent, while claiming to create
a more moderate standard of judicial review for abortion regulations that would
allow room for significant legislative activity on behalf of the unborn. Any
one of the three could have provided the fifth vote at that time to overrule
Roe, but they chose instead to band together and reaffirm it. Justice
Kennedy strove mightily to show that Stenberg was a betrayal, rather
than a logical consequence, of their infamous Casey joint opinion, and
he has good cause to believe that Nebraska’s prohibition of partial–birth abortion
should have been constitutional under Casey’s approach to interpreting
and reviewing abortion regulations.

Justice Kennedy argued that partial–birth abortion could rationally be viewed
as worse than D&E abortion because it was closer to infanticide and subverted
obstetrical childbirth techniques to kill the fetus delivered partially outside
of the mother, thereby particularly endangering the reputation and ethical integrity
of the medical profession. Yet, despite his prior vote to protect D&E abortion,
Justice Kennedy conceded that “those who oppose abortion” would subject both
partial–birth abortion and D&E abortion “to the most severe moral condemnation,
condemnation reserved for the most repulsive human conduct.” It is difficult
to know whether Justice Kennedy is having pangs of conscience for his role in
preserving elective abortion. It is clear enough, however, that now that Justice
Kennedy is no longer needed as the fifth vote to uphold Roe, Justices
O’Connor and Souter no longer feel bound to accord even minimalistic abortion
regulations the more moderate level of review promised in their Casey
opinion.

Pity the Stenberg five, for like Pharoah of old their hardened hearts
place them in more danger, spiritually speaking, than those whom they oppress.
Pity Justice Kennedy, who cast the decisive vote eight years ago to permit “the
most repulsive human conduct,” and now gazes upon the gruesome consequences.
Pity America, where a woman is not considered equal to a man unless her physician
may freely elect between dismembering her baby, piece by piece, onto a tray
or partially delivering her baby and then suctioning out the brains. And pity
humanity, ever finding fresh ways to express its depths of depravity, and desperately
in need of redemption by the God whose image we repeatedly deface in our inhumanity
to one another.

David M. Smolin is Professor of Law at Cumberland Law School of Samford
University in Birmingham, Alabama, and Fellow of the Southern Center for Law
and Ethics. He was primary author of a medical facts brief in Stenberg that
was cited in both majority and dissenting opinions.