The United States Supreme Court has upheld the Partial-Birth Abortion Ban Act of 2003. The vote was five to four, with Justices Kennedy, Roberts, Alito, Thomas, and Scalia in the majority. (Justice Kennedy wrote the majority opinion.) Justices Ginsburg, Souter, Breyer, and Stevens dissented. The ruling is a huge defeat for the abortion industry, even though the Court did not overrule Roe v. Wade (1973). Some of you will remember that I made a prediction several months ago. I was right about six of the justices. I was wrong about three: Kennedy, Roberts, and Thomas. I thought they would strike down the statute on Commerce Clause grounds—and, frankly, they should have. Instead, they upheld it. I’ll have more to say later, after I’ve read the opinions. All I’ve done so far is read the Court’s syllabus.
Addendum: Here is a New York Times story about the case. I can’t wait to read Linda Greenhouse’s “report.” She is an agenda-driven journalist, which is to say, not a journalist at all.
Addendum 2: The abortion industry will use the ruling as a way to make money. Count on it. Here is Planned Parenthood’s first response. Note that there is no mention of the babies whose skulls are crushed as they emerge from the womb. Why do you suppose this is?
Addendum 3: Here is Justice Kennedy’s description of partial-birth abortion:
In an intact D&E procedure the doctor extracts the fetus in a way conducive to pulling out its entire body, instead of ripping it apart. One doctor, for example, testified:
“If I know I have good dilation and I reach in and the fetus starts to come out and I think I can accomplish it, the abortion with an intact delivery, then I use my forceps a little bit differently. I don’t close them quite so much, and I just gently draw the tissue out attempting to have an intact delivery, if possible.” App. in No. 05–1382, at 74.
Rotating the fetus as it is being pulled decreases the odds of dismemberment. Carhart, supra, at 868–869; App. in No. 05–380, pp. 40–41; 5 Appellant’s App. in No. 04–3379 (CA8), p. 1469. A doctor also “may use forceps to grasp a fetal part, pull it down, and re-grasp the fetus at a higher level—sometimes using both his hand and a forceps—to exert traction to retrieve the fetus intact until the head is lodged in the [cervix].” Carhart, 331 F. Supp. 2d, at 886–887.
Intact D&E gained public notoriety when, in 1992, Dr. Martin Haskell gave a presentation describing his method of performing the operation. Dilation and Extraction 110–111. In the usual intact D&E the fetus’ head lodges in the cervix, and dilation is insufficient to allow it to pass. See, e.g., ibid.; App. in No. 05–380, at 577; App. in No. 05–1382, at 74, 282. Haskell explained the next step as follows:
“‘At this point, the right-handed surgeon slides the fingers of the left [hand] along the back of the fetus and “hooks” the shoulders of the fetus with the index and ring fingers (palm down).
“‘While maintaining this tension, lifting the cervix and applying traction to the shoulders with the fingers of the left hand, the surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down, along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger.
“‘[T]he surgeon then forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge the opening.
“‘The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely from the patient.’” H. R. Rep. No. 108–58, p. 3 (2003).
This is an abortion doctor’s clinical description. Here is another description from a nurse who witnessed the same method performed on a 26-week fetus and who testified before the Senate Judiciary Committee:
“‘Dr. Haskell went in with forceps and grabbed the baby’s legs and pulled them down into the birth canal. Then he delivered the baby’s body and the arms—everything but the head. The doctor kept the head right inside the uterus… .
“‘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… .
“‘He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.’” Ibid.
Dr. Haskell’s approach is not the only method of killing the fetus once its head lodges in the cervix, and “the process has evolved” since his presentation. Planned Parenthood, 320 F. Supp. 2d, at 965. Another doctor, for example, squeezes the skull after it has been pierced “so that enough brain tissue exudes to allow the head to pass through.” App. in No. 05–380, at 41; see also Carhart, supra, at 866–867, 874. Still other physicians reach into the cervix with their forceps and crush the fetus’ skull. Carhart, supra, at 858, 881. Others continue to pull the fetus out of the woman until it disarticulates at the neck, in effect decapitating it. These doctors then grasp the head with forceps, crush it, and remove it. Id., at 864, 878; see also Planned Parenthood, supra, at 965.
Some doctors performing an intact D&E attempt to remove the fetus without collapsing the skull. See Carhart, supra, at 866, 869. Yet one doctor would not allow delivery of a live fetus younger than 24 weeks because “the objective of [his] procedure is to perform an abortion,” not a birth. App. in No. 05–1382, at 408–409. The doctor thus answered in the affirmative when asked whether he would “hold the fetus’ head on the internal side of the [cervix] in order to collapse the skull” and kill the fetus before it is born. Id., at 409; see also Carhart, supra, at 862, 878. Another doctor testified he crushes a fetus’ skull not only to reduce its size but also to ensure the fetus is dead before it is removed. For the staff to have to deal with a fetus that has “some viability to it, some movement of limbs,” according to this doctor, “[is] always a difficult situation.” App. in No. 05–380, at 94; see Carhart, supra, at 858.
I’m sorry to ruin your day, but you need to know what the abortion industry is defending.
Addendum 4: NARAL says today’s ruling is a “setback for women’s health and privacy.” That it is—in the same way in which the prohibition of murder is a setback to murderers’ liberty. The press release doesn’t mention whether the ruling benefits babies.
Addendum 5: Many of the 2008 presidential candidates have commented on the Court’s ruling. See here. By the way, has it ever struck you as incoherent for a politician to say, “I’m personally opposed to abortion, but I support a woman’s legal right to choose.” Let’s unpack this. On what basis, other than the fact that it’s murder, would the politician oppose abortion? That it’s messy? That it’s offensive? That it’s costly? But if it’s murder, why would one support a legal right to commit it? Are some murders acceptable, whereas others are not?
Addendum 6: To my surprise, Linda Greenhouse wrote a fair and balanced report. Would I have written it differently? Yes. Is it obviously biased? No.