“God save the United States and this Honorable Court!” From the beginning, every session of the Supreme Court has opened with that prayerful injunction. Now that five Justices have given their constitutional blessing to partial–birth abortion, we’d clearly be better off if the prayer were hereafter printed at the conclusion of Court decisions.
Justice Stephen Breyer’s opinion in Stenberg v. Carhart is many things, none of them good. The law reviews will pinch, poke, and prod the text in their usual pedantic fashion, but in truth nothing more remains to be said. Abortion on request at every stage of the unborn child’s development, up to and including the process of birth, is now the law of the land. The argument advanced to reach that conclusion will not bear the weight placed upon it, and belaboring the text only clothes it with undeserved dignity. As Justice Antonin Scalia pointed out in dissent, we are in the realm of ideology, not reason. Fashionable opinion will of course salute Breyer’s work as a finely wrought piece of legal art, but that quarter praises even wretched work as long as the result comports with its interests. Defenders of the unborn will in turn dissect Stenberg in devastating and minute detail, as they have prior cases; but no criticism, however harsh and from whatever source, can possibly match the tone or content of what was said by dissenting members of the Court itself. Justices Scalia, Clarence Thomas, and Anthony Kennedy were each in their own way eloquent and powerfully compelling. They picked the majority opinion clean, down to the bone. The only news here, and thank God for it, is that Kennedy seems finally to have seen the error of his ways.
Stenberg reminds us—as if we needed reminding—that the majority does its abortion work under the spell of an ideological talisman from which no fact and no amount of contrary reasoning is likely to rouse it. Twenty–seven years are proof enough. The error was bred in the bone of Roe v. Wade, which established the central legal fiction that has ever since controlled the Court’s abortion jurisprudence. The fiction is that the Constitution is bound to respect only the pregnant woman’s decision, whence it follows that legal protection for an unborn child must exist largely, if not exclusively, at her sufferance. From that predicate all else follows. Taking the long view, all litigation since Roe has been little more than a working out of the necessary but previously unacknowledged implications of the original flawed premise. That “thing” without which no controversy would exist at all, the child who lies (as the common law put it) en ventre sa mère, is not only treated as a nonperson; he has vanished from the legal horizon almost altogether. Lizards and lousewort enjoy greater attention and legal protection.
This tragic denouement follows inexorably from Harry Blackmun’s handiwork in Roe. His labors there produced a breathtaking piece of legal prestidigitation: he invented a creature previously unknown to law, medicine, philosophy, or for that matter even poetry. But no sooner had he conjured the apparition than he promptly caused it to disappear. He called his creation “potential” life notwithstanding that it was already palpably present, and vested it with magical properties of growth even while valuing those properties at precisely zero. Despite multiple opportunities in ensuing litigation, the Court has never bothered itself to explain why this “mere” biological potency deserves our attention, much less why, when, or how it becomes a rights–bearing creature entitled to legal protection. To pause overlong on the nature of that “thing” threatens to expose the disingenuousness that produced the governing fiction in the first place; too many inconvenient questions have to be asked and answered. In the Court’s hands, the unborn child has come to occupy roughly the same status as a corpse at a wake: its presence must be acknowledged to get things going, but it is not thereafter expected to perform any function.
This bizarre fiction, in which the child is at once irreducibly present yet not at all, has driven abortion litigation at the Court for nearly thirty years. Rather than trying to parse the tortured reasoning of these cases, we would do better to ponder the mindset that routinely produces it. To understand abortion as anything other than the taking of a human life requires the suspension of the simplest sort of moral reasoning and common sense. Ask a woman who has recently discovered that she is pregnant—a woman, that is, not otherwise animated by murderous intent—and she will tell you that she is going to have a baby. Unless encumbered by a thoroughly modern education, she will not typically speak of the life within her as a “potential” anything, nor refer to it by any of the other ideological neologisms the smart set invented to avert their gaze from the bloody consequences of their intentions. She will think and talk and fret about her child, whose tangible presence informs her every conscious moment that her own humanity is now fully shared by the little one she nurtures within her womb.
This sort of elementary knowledge is routinely ignored or denied in the Court’s reckoning. Worse, it is contorted until reason is stood on its head. We are asked to believe that what everyone of normal sensibility already knows is really not known at all. This is no easy task. One must labor mightily to master the philosophical, legal, and semantic distortions necessary to vest abortion with constitutional dignity. But a convenient fiction repeated often enough eventually acquires the status of a Big Lie, and Justice Breyer’s opinion in Stenberg is chiefly an exercise in which the majority tries to convince itself that the lie still carries sway. Nothing surprises in this case save for the willful persistence with which the majority shores up its jerry–built house of legal abstractions.
The facts of partial–birth abortion are, of course, unusually horrific, and no doubt the Justices would just as soon have avoided them. In the event, they could not bring themselves to describe the deed except with the sterile detachment of medical terminology, and even that was gingerly done. In the face of facts like these, only the practiced ingenuity of a fancy legal education could induce five members of the Court to render so impassive a judgment of execution. But render it they did, and by a mode of reasoning, moreover, that will present few difficulties in the next case when yet more repellent facts present themselves.
Let there be no mistake about it: Stenberg has brought us at last to the abyss of constitutionally sanctioned homicide. Even the exquisitely tuned intellectual seismograph of Daniel Patrick Moynihan cannot distinguish between partial–birth abortion and infanticide. What has escaped his contemplation will surely not be discovered by any of the Court’s majority so long as the pregnant woman’s interests remain the more or less exclusive focus of its concern. Justifying infanticide will be, pardon the expression, child’s play for sophisticated lawyers bent on reaching a fore ordained conclusion. No one can predict what the majority will do when it confronts a child intended for destruction but nevertheless fully born alive, but we know this much: nothing in Stenberg’s reasoning will prevent that child’s destruction, too. The Justices may in the end pull up short, but if so, they will have to abandon Stenberg and, with it, the original fiction that has sustained the abortion cases all these years.
It is in the nature of fictions that they can sustain their magic only so long as a willing suspension of disbelief governs their development. Once reality is allowed to trespass upon the presentation, the magic can no longer work its effect. Unlike stories, where the pretense can go on forever, legal fictions tend to have a limited shelf life. A storyteller controls not only the characters, but the plot. Litigation, by contrast, has a way of generating new facts beyond judicial control. Palpable facts—unanticipated, stubborn, and sometimes irreducible facts—keep intruding; they constantly threaten to expose the fragility of the operative legal fiction.
It has been so with abortion litigation for three decades. As the cases have multiplied, the tangible omnipresence of that “other” has become progressively more difficult to ignore or explain away, and ever more strenuous exertions of will and disingenuousness are required to sustain Roe’s controlling legal fiction. Ever since Planned Parenthood v. Casey, the Justices have found it increasingly necessary to employ diktat to justify their judgment. Their argument now relies almost entirely on the imperialism of Alice’s Red Queen, who, when confronted with palpably impossible facts contrary to all logic, finally insisted, “I said it once, I said it twice, it must be so!”
The wheel has come full circle. Stenberg takes us back to Roe, when Justice Byron White, in dissent, condemned the majority’s judgment as an exercise in “raw judicial power.” Everything that has happened since confirms the accuracy of White’s assessment. The majority, in its obduracy, appears to have learned nothing and forgotten nothing. Justice Sandra Day O’Connor, who was wiser on these matters ten years ago than she is today, once wrote that the Court’s reasoning in the abortion cases was “on a collision course with itself.” In Stenberg, after surveying an accident scene with broken bodies strewn all across the landscape, she and four of her colleagues managed to convince themselves that no collision occurred after all. Having created the fiction in the first instance to persuade others, they now fully believe it themselves. No evidence, no argument will ever suffice to alter their self–created delusion. It is time for them to go. God save the United States and this Honorable Court indeed.
Michael M. Uhlmann is Vice President for Public Policy Research at the Lynde and Harry Bradley Foundation.