High Court's Act of Judicial Infamy George Will
Washington Post Writers Group
Tuesday, July 4, 2000

It probably was inevitable that partial-birth abortion would become a sacrament in the Church of "Choice.'' That sect's theology cannot risk conceding that what is killed in an abortion ever possesses more moral significance than a tumor. Hence it cannot concede that society's sensibilities should be lacerated by, or that its respect for life might be damaged by, any method of abortion.

But how did this surgical procedure become, as it did Wednesday, not just a constitutional right but a "fundamental'' constitutional right -- a right deemed integral to the enjoyment of liberty?

Nebraska's ban on partial-birth abortion, akin to bans enacted by 29 other states, has not survived the Supreme Court's scrutiny. But scant scrutiny was required, given the logic the court locked itself into 27 years ago when, in Roe vs. Wade, the court, with breathtaking disregard of elemental embryology, described a fetus as "potential life.''

Not long ago, pro-abortion forces denied that what they call "fetal material,'' and Nebraska calls "a living unborn child,'' can feel pain. In fact, partial-birth abortion, which is generally used in the third trimester of gestation, is inflicted on beings that have reflexes and brain activity and other attributes of newborn infants.

Nebraska defined the prohibited practice as "delivering into the vagina a living unborn child'' for the purpose of killing it. In this procedure (which the court majority, in its delicacy, flinches from fully describing) the baby is turned, pulled by its kicking legs almost entirely from the mother. Then, with only the top of the skull still in the birth canal, the skull is punctured and its contents sucked out.

Divided 5-4, the court held that Nebraska's law, as phrased, might criminalize another, more common procedure used primarily in second-trimester abortions. But Nebraska's attorney general has expressly vowed not to apply the law to this more common procedure.

The court also faulted Nebraska's law for lacking an "exception for the preservation of the . . . health of the mother.'' But the American College of Obstetricians and Gynecologists, which opposes restrictions on abortion, says it can identify "no circumstances under which'' partial-birth abortion "would be the only option to save the life or preserve the health of the woman.''

The primary reason the court ruled against Nebraska is that it cannot find traction on the slippery slope onto which it so improvidently stepped 27 years ago. America's subsequent slide into the culture of death was manifest Sept. 26, 1996, during a Senate debate on partial-birth abortion.

Pennsylvania Republican Rick Santorum asked Democrats Russ Feingold of Wisconsin and Frank Lautenberg of New Jersey this: Suppose during an attempted partial-birth abortion the infant, instead of being just almost delivered, with only a few inches of skull remaining in the birth canal, slips entirely out of the canal. Is killing the born baby still a "choice''? Feingold and Lautenberg said it was still a matter between a mother and her abortionist.

Feingold and Lautenberg anticipated the court. In Roe vs. Wade, which arose in Texas, the court left standing a Texas law prohibiting "the killing of an unborn child during parturition,'' meaning the killing of an infant "in the state of being born and before actual birth.'' On Wednesday, such killing -- what Justice Scalia, dissenting, accurately calls "live-birth abortion'' -- became a fundamental constitutional right.

Wednesday's decision will, as Justice Scalia said in dissent, rank with the cases of Dred Scott (1857, saying blacks could not be citizens and so could not seek judicial protection of their rights) and Korematsu (1944, upholding the internment of American citizens of Japanese ancestry) as acts of judicial infamy.