6/28/00 6:35 p.m.
Day of Infamy
But the struggle must continue — with legislation to save babies who survive abortion.

By Hadley Arkes, NR contributing editor & professor at Amherst College

larence Thomas has thoroughly blown away any cover that might be used by his colleagues on the Court in concealing the enormity of what they did on Wednesday, when they struck down the law in Nebraska that barred partial-birth abortions. At the same time, he removed that thin layer of pretense that even the pro-lifers were ready to use in order to put out a more hopeful story and preserve the morale of their own people. On both sides the "line" would be offered that the bill in Nebraska was simply too "vague," that it did not distinguish the partial-birth abortion from other procedures, quite as gruesome, that the law permitted. And so Justice O'Connor suggested that the law in Nebraska might have been salvaged if the framers had made it clear that the law applies only to that procedure of delivering a living fetus up to its head, evacuating the contents of the skull, and then removing the body, so to speak, intact. That would leave out the method — perfectly acceptable to O'Connor and her friends — of dismantling a live baby piece by piece. Such a distinction, said O'Connor, would "avoid a principal defect of the Nebraska law."

But Clarence Thomas saw through the smoke screen: No amount of tinkering with the language, no attempt to make the law even tighter in its focus, would salvage this or any other bill. O'Connor's advice, he said, was "illusory"; it offered a "fig leaf barely covering its hostility to any abortion regulation." However narrowly the statute may be drawn, it can be overturned unless it makes provision for the "health" of the pregnant woman, and in making that estimate, the opinion of any doctor — even her abortionist — might suffice. In the testimony of the American Medical Association, a partial-birth abortion was never necessary to protect the life or health of a pregnant woman. And Justice Breyer, writing for the majority, conceded that there was no evidence to confirm the claim that this procedure might be safer for some women. It was conceivable that, under certain circumstances, it might be: After all, in other procedures, a loose head, or other parts, might linger for a while in the mother's body, where they could cause infection. But from that conjecture, or that conceivable opinion, Breyer could claim a "division of opinion among some medical experts."

At the same time, the notion of health has been understood for a long time to encompass "mental" health. And so, an abortionist who thinks that his client would feel "better" or avoid distress if she had the abortion, may tenably register his view that this partial-birth is "necessary" for the health of his patient. As Justice O'Connor has now made clear, this "health exception" would be absolutely necessary for any bill on abortion. Its absence would mark an "undue burden" on the woman's "right to choose" abortion. But it also makes a nullity of any law with even the slightest restrictions on abortion. As Thomas put it, "no regulation of abortion procedures is permitted because there will always be some support for a procedure and there will always be some doctors who conclude that the procedure is preferable."

No decision completes more radically the project begun in Roe v. Wade, to withdraw all protections of the law for a child marked for abortion, even at the point of birth. But this was also the narrowest possible vote in favor of abortion rights: 5-4, with Justice Kennedy returning to the side of the dissenters. And while the vote edged in favor of abortion, the moral passion and outrage, and the sense of momentum, seemed clearly on the pro-life side. But what, right now, could the pro-lifers do?

To take an old line from Andrew Jackson, at the Battle of New Orleans, it may be useful to "elevate them guns a little lower." The pro-lifers may actually firm up the grounds of hope by firming up the grounds of the law — and doing it with the most "modest first step" on abortion that has been proposed: the move simply to preserve the life of the child who survives the abortion. The argument for that move was first sounded in the pages of NR in 1988 ["How to Roll Back Roe," Oct. 28, l988), and I know, because I sounded it. But now that proposal has actually been put into play — it has been introduced by Rep. Charles Canady (R.-Fla.), the chairman of the panel on the Constitution of the House Committee on the Judiciary. Canady's bill is called the "Born-Alive Infants Protection Act," and it would fill in the premises that the bill on partial-birth abortion never bothered to fill in: namely, that the child is a real entity, with standing to receive the protection of the law, and that her claims to the protection of the law cannot pivot on the question of whether anyone happens to want her.

That may sound even too simple, or overly modest, but there have already been signs from the Democrats on the Judiciary Committee that they will oppose this bill. For as modest as it is, it goes to the root. In one notable case, in 1977, a child had survived an abortion for 20 days, and one surgery, and the question was raised as to whether there was an obligation to preserve his life. The answer tendered by Judge Clement Haynsworth was, no: "The fetus in this case was not a person whose life state law could protect." It was a fetus rather than a child because it had been marked for "termination." In other words, the right to an abortion was not merely the right to end a pregnancy; it was the right to a dead child.

That is a bizarre claim, and yet it is not something that the partisans of abortion can readily give up. After all, if a pregnant woman could bear to give away a child who is "hers," she could as readily bring the child safely to birth and give it up for adoption. On the floor of the Senate last October, Rick Santorum (R-Pa.) put the question to Barbara Boxer (D-Ca.): Couldn't the law protect the child "once the child is born, separated from the mother"? To this, Boxer replied that the baby has rights only "when you bring your baby home." Santorum, out of chivalry, assumed she was kidding, but when he pressed the question, she became inflamed.

The encounter confirmed what had long been suspected: that the very posing of the question had a powerful effect, for the partisans of abortion sense that they cannot concede to even that most modest of points without putting in place the premises that would undermine their whole position.

In the federal court of appeals in Chicago, about a year ago, Judge Richard Posner twitted the pro-lifers: He pointed out that the drafters of the bills on partial-birth abortion had never claimed that the law could actually protect the child. In that event, he asked, why should the State have any compelling interest in shifting the killing of the child from the birth canal back to the uterus? And indeed, cast in those terms, why should it? Rep. Canady's bill "elevates them guns a little lower": As modest as it is, it puts in place the premises that will make it possible for another Court, with better judges, to revisit this question. And with a sober second look, they may be delivered to their own, better judgment.

In the meantime, the putative leader of the Republican party, George W. Bush, should be expected to say something. Critical parts of his coalition have sustained a grievous assault, and it is precisely the function of a leader to step in at such moments to frame the problem, articulate the ends, and supply the grounds of hope. At the very least, he could sound the case for Rep. Canady's bill, and invite all people of moderation to join him in this simplest of moves.

If there is any sure thing in our politics, it is that the media will go after Bush on abortion, with questions designed to be embarrassing. Knowing that, why would it not be in Bush's interest to frame the question his own way, on terms that put Al Gore and his friends on the defensive? If Canady's bill doesn't do that, it is hard to imagine what would. And if Bush cannot speak on a bill of that kind, sure to gather the widest support, on what could possibly ever speak? But more than that, what grounds of hope would we find in an Administration so afraid to make even the simplest case in public?