by Richard M. Doerflinger
April 20, 2007
The Supreme Court's new ruling on partial-birth abortion has near-term and long-term implications. Both should give us new hope in the struggle to build a culture of life.
The immediate impact is that after a decade of political and legal struggle, Congress is finally allowed to forbid a late-term abortion procedure "so horrible that the most clinical description of it evokes a shudder of revulsion." (The quote is from Justice Antonin Scalia, dissenting from the Court's ruling seven years ago allowing partial-birth abortions to continue – and if you think he exaggerates, find Justice Kennedy's new majority opinion in Gonzales v. Carhart online and read the first three pages.) By allowing a ban on the deliberate delivery and direct killing of the mostly-born child, the Court has at least prevented abortion from sliding entirely over into infanticide.
But as many have said, the ban itself will not prevent many abortions. More important in the long run are the signs that "the abortion distortion" – the Court's past refusal to apply the same rules of decisionmaking in abortion cases as in other cases – may be a thing of the past. No longer will protective laws be struck down simply because the legislators are motivated by ethical concerns, or because their factual findings were disputed by some abortion doctors, or because a plaintiff cobbled together a hypothetical future case where the law may someday have an untoward result. What Justice Scalia has called the Court's "ad hoc nullification machine" for abortion laws is replaced by the usual presumption that a duly enacted law is constitutional unless shown otherwise.
Most encouraging of all is the way the Court has begun to deliver on a promise made in its 1992 Planned Parenthood v. Casey decision. At that time the Court's plurality opinion upheld the basic core of Roe v. Wade on the ground that it had been a judicial precedent for so long, but admitted that Roe may not have given enough attention to a key factor in the abortion dilemma: the value of the unborn child's life. The new decision sets aside past evasions about not knowing "when human life begins," and simply acknowledges that, "by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb." The Court calls the victim of abortion an unborn child, and clearly recognizes abortion as a form of killing.
Nor does the Court ignore the plight of the pregnant woman. Rather, it emphasizes how wrenching her situation is, and how terribly wrong it is for an abortionist to hide the reality of abortion from her until it is too late to act differently. On this point the Court cites a "friend of the court" brief filed by 180 women who personally experienced grief, sorrow and depression after abortion.
From a legal viewpoint, the new decision is narrow in its impact. Roe v. Wade still stands, and the vast majority of abortions remain legal. But this Court has begun to take off the blinders and see abortion, recognizing its harm to children, women, the medical profession, and all of society. Advocates for the sanctity of human life should take encouragement from this clearer vision.
Mr. Doerflinger is Deputy Director of the Secretariat for Pro-Life Activities, U.S. Conference of Catholic Bishops.