6.28.00
Ruling without Mercy

6.28.00
RU-486 Is No Boon for U.S. Women

6.27.00
Bush Does the Lulac

6.26.00
Loud and Proud

6.23.00
Dr. James Boice, R.I.P.

6.22.00
Hate (Crime) Cannot Wish Thee Worse

6.20.00
Murder in California

6.20.00
Collective Oblivion

6.19.00
Stand There and Enjoy It

6.19.00
Justice Should Be Color-Blind

6/28/00 1:35 p.m.
Ruling without Mercy
Remaining steadfast even unto infanticide.

By NR's editors

The Court's putative justification for striking down Nebraska's ban on partial-birth abortion is that the law is too vague, and might restrict so many abortions as to place an "undue burden" on the alleged constitutional right to abortion. But that is not the Court's real concern. If it were, it would have waited to see whether the law really was being applied indiscriminately. The law, however, was never given a chance to work. It was immediately blocked by a federal judge.

Various justices — Stephen Breyer writing for the Court, and Sandra Day O'Connor in her concurrence — also raise the concern that the law made no exception for health. Yet an expert panel of the American Medical Association found that partial-birth abortion is never medically necessary. And the Court implicitly concedes that the mother's health would not be damaged if the child were simply delivered. As Justice Antonin Scalia noted in dissent, "the Court must know . . . that demanding a 'health exception' which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?) is to give live-birth abortion free rein."

The Court's real fear is that accepting any restriction on abortion will call all of its handiwork into question. It is putting its finger in the dike. The Court advances an argument similar to that of Judge Richard Posner, whose own opinion holding a partial-birth-abortion ban unconstitutional is cited by two of the justices. Posner points out that the technique used to perform an abortion has no moral importance, as the baby will have been deliberately killed whichever one it is. What difference does it make what percentage of the baby's body is outside the womb?

Posner is right: It makes no difference. But this is not a legitimate reason to strike down a ban on partial-birth abortion. The Constitution does not require that all laws conform to a rigorous moral logic. A few years ago, there was widespread outrage about Florida's electric chair, "Old Sparky," which sometimes set criminals on fire during its operation. Nobody suggested that this ghoulish spectacle did not matter because the criminal was going to die anyway. The prevention of cruelty and horror was sufficient justification for fixing the problem. Posner's argument poses a dilemma, but not for opponents of abortion. They have always maintained that a human life begins at conception, and that it deserves the protection of the state. The purpose of the campaign against partial-birth abortion was to challenge proponents of abortion to draw the line at birth. If they will not, it is reasonable to wonder whether they will draw a line anywhere. Occasionally, an abortionist will fail in his effort to kill a baby. On Posner's premises, it is hard to see how the law can protect such survivors. Pro-lifers plan to press the point.

The campaign against partial-birth abortion has revealed that the public's moral sentiments, if not always its moral reasoning, remain healthy. It has revealed something, too, about the abortion lobby — the activists, the politicians, the writers, the judges who support abortion on demand. They have watched a baby, partly out of the womb, have her skull punctured and her brains sucked out. They have been asked, Must even this be tolerated? And they have looked at this grisly scene and answered yes, even this. The logic of abortion is merciless.

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