Copyright 2000 St. Louis Post-Dispatch, Inc.
St.
Louis Post-Dispatch
June 19, 2000, Monday, FIVE STAR LIFT EDITION
SECTION: EDITORIAL, Pg. B7
LENGTH: 767 words
HEADLINE:
ABORTION : SOCIAL GOALS ARE PLACED ABOVE INHERENT GOOD OF HUMANS
BYLINE: Edward J. Richard
BODY:
THE U.S. Supreme Court is poised to
rule on its first abortion case in eight years. The case, Stenberg vs. Carhart,
involves Nebraska's version of legislation, enacted in about 30 states, designed
to ban so-called partial-birth abortion. The case pits Donald
Stenberg, Nebraska's attorney general, against Leroy H. Carhart, a physician who
performs abortions. Carhart sued Nebraska in federal district court and won a
declaration, upheld in the appeals court, that the state's law banning that type
of abortion was unconstitutional.
The law failed because it allegedly
constitutes an undue burden on the exercise of the so-called right to abortion.
In the court's interpretation of the statute it bans another type of abortion
known as dilation and evacuation, "the most common procedure for
second-trimester abortions."
Understanding legal arguments and judges'
opinions is not easy, but we must try. Court decisions have to withstand
scrutiny on review that, one hopes, is at least mildly predictable.
No
matter how strongly one feels about abortion, one way or the other, we all need
to understand the pertinent laws and the interpretations of those laws by the
men and women who are the state or federal judges. Judges understand how law is
made and how to make the law say what it should say, in their view of the
policies at stake.
In our contemporary legal system judges tend to be
active in promoting views about what is right and wrong for society. Oliver
Wendell Holmes Jr., a great jurist of the 20th century, said the law should
capitalize on its capacity for social change. His colleague, Roscoe Pound, dean
of Harvard Law School, helped the judiciary become a force in what he called "a
more effective social engineering." The choice was made to engineer a new
pragmatic morality with a radical notion of freedom enrobed in the language of
privacy. Abortion is at the epicenter of that legal upheaval.
Deference
to legal, social and political experts has had the effect of taking the
discussion of the social impact of abortion, with its destruction of families,
and mothers and babies, out of the lowly reach of those upon whom the court
rulings have the greatest impact.
Abortion policy has been secured in
the hands of the more powerful interest groups, their experts and the judicial
order.
This peppery blend has succeeded in making abortion, to
paraphrase Justice Sandra Day O'Connor, a way of life for a whole generation of
women.
The legal arguments amassed in Stenberg vs. Carhart illustrate
the failure associated with placing a stubborn policy of social goals above the
authentic good of the human person.
Both parties have been forced to
awkwardly maneuver around explosive positions with respect to their own causes.
The state's attorney has had to argue that a very common abortion
procedure, the D&E, is not subject to the state's interest in the
legislative ban because it's not as gruesome as partial-birth abortion.
On the other hand, the abortion providers have had to present the
D&E in such detail that the court concludes that D&E, in fact, is not
distinguishable from partial-birth abortion.
The questioning and
the testimony are most interesting.
Counsel asked Carhart, "So the
dismemberment occurs after you pulled a part of the fetus through the cervix, is
that correct?"
His answer, "Exactly."
"Do you . . .
dismember the fetus in utero first, then remove portions?" the lawyer asked.
He answered, "I don't know of any way that one could go in and
intentionally dismember the fetus in uterus. If you grab an extremity and twist
it, you can watch the whole fetus just twist. It takes something that restricts
the motion of the fetus against what you are doing before you're going to get
dismemberment." In both procedures, the fetus is removed feet first and the
skull compressed.
AS one can see from this strained posturing, the
interpretations of freedom and the program of social policy enshrined in the
abortion jurisprudence have injected a strange irony into the decorum of law,
which unmasks an illogical and inhuman pose.
One wonders whether the
argumentation is not mere meaningless meandering around constitutional
contrivances. The ultimate irony of this most recent foray into social
policy-making will come if the Supreme Court agrees with the Carhart contingent.
The court's finding would mean that the most common form of second
trimester abortion cannot be distinguished from partial-birth abortion, a
procedure that has successfully demonstrated the manifest brutality of abortion
itself.
LOAD-DATE: June 19, 2000
