Skip to content
Link copied to clipboard

Christine M. Flowers | WHO ARE THE 'EXTREMISTS' NOW?

LAST WEEK, in a decision written by Justice Anthony Kennedy and joined by Justices Scalia, Roberts, Thomas and Alito, the Supreme Court upheld the federal ban on a specific type of late-term abortion procedure known as "intact D&E."

Associated Press
Associated PressRead more

LAST WEEK, in a decision written by Justice Anthony Kennedy and joined by Justices Scalia, Roberts, Thomas and Alito, the Supreme Court upheld the federal ban on a specific type of late-term abortion procedure known as "intact D&E."

The clinical description is frightening enough: extracting a second- or third-trimester fetus until everything but the head is exposed and then puncturing the skull so that it collapses to facilitate delivery. But here's the way it was described by an obstetrical nurse who testified before the Senate Judiciary Committee:

The doctor "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 the placenta. He threw the baby in a pan, along with the placenta and the instruments he'd just used."

Kennedy was so moved by this that he included it in his opinion. That's not surprising - he has a penchant for the dramatic. He's often ridiculed by constitutional scholars (and me, too) for having once compared abortion to the "mystery of human life."

But this time he gets high marks for departing from cold medical jargon and using language that an ordinary human being can appreciate. The nurse's testimony provides the moral backbone for the opinion, and should have shamed Planned Parenthood and NARAL Pro-Choice America into silence.

No chance. Almost immediately, representatives from both offered the usual mantra that women's lives were in danger and that the clock (sundial?) had been turned back on their rights.

Eve Gartner, who argued before the court on behalf of Planned Parenthood, called the decision "a shocking setback for women's health." NARAL's Web site went even further: "The Court has given anti-choice state lawmakers the green light to open the floodgates and launch additional attacks on safe, legal abortion, without any regard for women's health."

And we can't forget that the five justices who voted to uphold the ban are (cue the organ music) "Roman Catholics." Cartoonists portrayed the majority with papal miters, while eminent theologian Rosie O'Donnell observed that "if men could get pregnant, abortion would be a sacrament."

Most despondent of all was Justice Ruth Bader Ginsburg, who delivered a passionate dissent from the bench. Her manifesto, joined by the other three most liberal members of the court, summoned ghosts of the suffragettes:

"The court deprives women of the right to make an autonomous choice, even at the expense of their safety. This way of thinking reflects ancient notions about women's place in the family and under the Constitution - ideas that have long since been discredited."

THERE ARE two problems with Justice Ginsburg's position. First, the ban that the majority upheld includes exceptions where the mother's life is in danger. There is also ample evidence that intact D&E is never necessary to preserve a woman's health. So safety's a red herring.

And while the sole female justice can be forgiven if she feels more keenly the burden imposed by "ancient notions," her refusal to recognize the barbarity of the procedure and the fact that the ban affects a very narrow group of people highlights the Achilles heel of the pro-choice movement.

For the activists, it's all or nothing. Hillary Clinton can talk about making abortion safe, legal and rare, but the apoplectic responses to the decision show that many pro-choicers don't care if it's rare. They want to make sure it's safe, legal and available - even when medically unnecessary. All because, as Justice Ginsburg implies, it is only a woman's decision.

And that's why what happened last week is so important. The scope of the decision is extremely limited. Roe is still standing, and women are still unfettered in their ability to have abortions during the first trimester, when more than 90 percent are performed. In fact, doctors can still dismember babies in the womb. They just can't crush their tiny skulls.

But the insistence on having access to such a gruesome, unnecessary medical procedure points out how out-of-touch the pro-choice movement has become.

God bless them. They've managed to make us look like the reasonable ones. *

Christine M. Flowers is a lawyer.