What's New in the Abortion Debate in the Wake of the Supreme Court Decision

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Mr. Gordon teaches history at the University of Massachusetts at Amherst and is a writer for the History News Service.

"Today's decision is alarming," wrote Justice Ruth Bader Ginsburg in her dissenting opinion in Gonzales v. Carhart -- the recent case in which the Supreme Court endorsed the Partial-Birth Abortion Ban Act of 2003.

This is an understatement. The Carhart case is a revolution. An "alarming" decision would leave time for the pro-choice side to react, but Carhart has already transformed how the Supreme Court frames the abortion issue.

The importance of the new decision lies not in its technical legal content but in its rhetoric. The older landmark abortion cases dealt with abortion as an abstract problem. In contrast, Justice Anthony Kennedy's majority opinion in Carhart makes the reader feel like a witness at gruesome abortion procedures. Some will denounce Kennedy's rhetoric as a distraction from the main legal issues. But he has moved the debate about abortion forward: It makes no sense to discuss the constitutionality of abortion without factoring in how real abortions take place.

Starting with Roe v. Wade (1972), the Supreme Court tended to dwell on the theoretical issue of how to balance a woman's "right" to privacy against the state's "interest" in promoting respect for human life. In Roe, Justice Harry Blackmun acknowledged that abortion is a "sensitive and emotional" subject, but he did not discuss how abortions occur.  His was a sanitary discussion of "privacy," the theoretical basis for a woman's right to choose.

The other landmark in the Court's abortion jurisprudence, Planned Parenthood v. Casey (1992), was even more abstract. The Court focused on the issue of whether it had to follow the Roe precedent or was free to embark on a new course. The majority decided that the principle of stare decisis, or sticking to precedent, was necessary to maintain legal stability.

The one difference with Roe is that the Casey case rejected the "rigid trimester framework" for talking about different stages of pregnancy. The Court emphasized instead that "viability" is the point at which the state's interest in preserving life may outweigh the woman's privacy right. However, even this discussion of pregnancy did not come close to the corporeal character of Kennedy's language in Carhart.

Kennedy's visceral writing makes the reader feel like a witness to infanticide. This is jurisprudence in a theatrical key. It is what Antonin Artaud, a French dramatist of the early 20th century, called "the theater of cruelty." Artaud believed that life and death issues transcend the limits of what reasoned discourse can represent. An audience has to be brutally stimulated -- shocked by savage images reduced to an "extreme condensation of scenic elements."

A sense of terror in the presence of a previously hidden reality is just what Kennedy seeks to convey. He writes, for example, "The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina . . . The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety . . ."

This ghastly description is not about partial-birth abortion. It is about a more common type of abortion, called "dilation and evacuation,"  which Congress has not attempted to regulate. For Kennedy it is merely a build-up to the more horrifying main act. Partial-birth, Kennedy states, is "a method of abortion in which a fetus is killed just inches before completion of the birth process."  As part of a detailed and dreadful description, Kennedy quotes a nurse who assisted at a partial-birth abortion: "The baby's little fingers were clasping and un-clasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head . . . . "

Since the Carhart judgment was released on April 18, commentary in the press has understated its importance. Some observers suggest that the Court has merely backed the legislative ban on partial-birth abortions and that it remains unclear whether the Court will support prohibitions on other, more common abortion procedures. But unlike the Roe and Casey decisions, Carhart casts a moral shadow on all abortions performed by manually extracting the fetus, whether they are partial-birth or not.

That shadow has already affected how even pro-choice advocates discuss abortion. In her dissent, Ginsburg argues that the ban on partial-birth abortions is arbitrary because the partial-birth method is no more inhumane than extracting the fetus piece by piece. Quoting Justice John Paul Stevens in an earlier case, she refers to "these two equally gruesome procedures" and suggests that it's unreasonable to call one more akin to infanticide than the other.

But the easy response to this objection is to propose a broader ban on abortion. By conceding that the methods are often gruesome, Ginsburg yields to Kennedy's way of portraying abortion. From now on, there will be no discussion of abortion, even by pro-choice activists, without discussion of blood. Not only the right of women to choose an abortion, not only the state's abstract interest in protecting life, but the process of abortion itself -- the theater of cruelty -- is at the center of discussion. This creates a more disturbing but a more authentic approach to the abortion problem.

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Joseph Mutik - 5/2/2007

In a U.S. society that doesn't want to enforce the male side of the responsibilities for children (child support, raising etc.) the woman should have the right to decide any time before she gives birth, if there is no male partner around, if sh wants to give birth or not. No male dominated body have the right to decide about this matter.
The society already decided that it can't be done after birth so your concern is superfluous. In Africa, very sadly, the AIDS epidemic takes of the population balance, especially because condoms are not a choice.
There is no scientific dividing line only a legal dividing line.

Nathan Eric Bryant - 5/2/2007

So by the above argument it would not be murder to kill a two year old as they have not started any schooling? Or the millions of children in Africa where health care is not available? Perhaps we can kill the childern in orphanages as they are not nurtured. If 47 million people tomorrow gain access to health care will abortion cease to be a false moral dilemma? If Mr. Mutik wishes to prove that aboriton is moral he needs to prove scientifically prove where the dividing line is between human life and merely life.

Joseph Mutik - 5/1/2007

There is a famous quote from André Malraux, "Man's Fate"
"You know the phrase: "It takes nine months to make a man, and a single day to kill him." We both know this as well as one can know it . . it does not take nine months, it takes fifty years of sacrifice, of will, of . . . so many things. And when this man is complete, when there is nothing left in him of childhood, nor of adolescence, when he is really a man he is good for nothing but to die."
A fetus is for sure a life but not a human life. To become a HUMAN the new born baby needs nurturing, health care, good education (the only good education is public, as in Japan or Germany)
In a country where about 47 million people don't have health insurance the morality of abortion is a false moral dilemma.

Frankie L Winchester - 5/1/2007

What Daniel Gordon appears to miss, as did many mainstream news outlets, is that there is no exception for the health of the mother in the law passed by Congress or the Supreme Court's decision. This is a truly revolutionary decision on that account.

Why are these men (and oddly it is mainly men who have commented about this decision) so ready to accept the loss of a woman's health or life to prevent a medical procedure they find "gruesome"? What I find truly gruesome is their total disregard for women's lives and health.

Hans Vought - 4/30/2007

The author's point is certainly correct and very important. What Kennedy's opinion does is, in a written form, similar to what the civil rights activists did: i.e., creatively dramatize the evil so that the conscience of the community nay grapple with the rightness or wrongness of the issue at hand. Kennedy correctly focuses on the core issue, which is life: the life and health of the baby, as well as that of the mother. This is necessary because abortion rights activists do not wish to acknowledge the baby's life at all. Like segregationists, they must be forced to recognize the common humanity of those whose rights they wish to deny.

Not only is this the central moral issue, it is the central legal one as well. The Constitution states that neither the federal government (in the 5th Amendment) nor the state governments (in the 14th Amendment) may deny to any person the right to life without due process of law. (Note that the right to life is actually declared twice in the words of the Constitution, unlike the theoretical right to privacy which earlier justices found in the "penumbra.") Once we recognize the unborn baby as a person, as Kennedy and the majority call upon us to do, then we are compelled to extend the government's protection of this most vulnerable person's life, unless the life (not the health or inconvenience) of the mother is at stake. To do any less is to violate both the Constitution and moral standards.

Joseph Mutik - 4/30/2007

I've read in one of the commentaries that the procedure, according to the decision, can't be performed on a living fetus but if the physician injects the fetus, before the procedure, with the appropriate chemical he can legally perform it on a dead fetus.
Of course the problem of the "slippery slope" still remains.