by
Paul Greenberg
April 29, 2007
So
what's the significance, if any, of the latest decision from the U.S.
Supreme Court in the never-ending legal seesaw that began with Roe
v. Wade and isn't about to end any decade soon?
Gonzales v. Carhart is neither the Great Triumph for the forces of
light that the pro-life camp was celebrating last week, nor the End
of Women's Rights that pro-choice organizations were bemoaning. It
is just one more slight move of the legal marker that determines the
degree of barbarity now permitted in our "civilization."
The high court's decision last week wasn't against abortion on demand
but just one particularly abhorrent form of it that's more like semi-infanticide;
it involves half-delivering the child before... well, even the antiseptic
medical description of the procedure should revolt anyone with minimal
moral or aesthetic sensibilities.
As for the simpler-to-understand description offered by a nurse, whose
testimony is cited in the majority opinion, it could have come from
one of the more lurid anti-abortion tracts. But this kind of thing
has been standard operating procedure in American medicine, and perfectly
acceptable American law, until last Wednesday.
No wonder the doctors who do this thing prefer to use Latinate euphemisms
like Intact Dilation and Evacuation rather than partial-birth abortion,
which comes entirely too close to accuracy for comfort. The simple
meaning of words must be blurred before the unacceptable becomes routinely
accepted in society. Much better to call killing termination, and
abortion choice. Verbicide, said C.S. Lewis, always precedes homicide.
Now the nation's highest court, which has come to double as our moral
arbiter, has solemnly decided in a 5-to-4 vote that the several states
may indeed bar this atrocity.
The majority opinion by Justice Anthony Kennedy was a finely reasoned
effort to make sense of a slight retreat from anything-goes abortion
law to almost-anything-goes. Justice Ruth Bader Ginsburg's minority
dissent was the legal equivalent of jumping up and down and yelling.
If doctors cannot end life in this particularly gruesome way, says
the Ginsburg Doctrine, it's clearly the end of Western civilization
rather than what it is: the smallest gesture of respect for what remains
of it.
This ruling is scarcely a landmark, but it does have a certain significance.
It may indicate the pendulum has finally reached one extreme in this
debate and begun to swing back, however slightly. At least let's hope
so.
Justice Kennedy's (bare) majority opinion acknowledges that the United
States government has a legitimate interest in preserving human life,
including fetal life. Our times are such that such an admission comes
as a revolutionary announcement worthy of Page One headlines across
he country.
Let it be duly noted that the high court did not rule against abortion
itself at any time and for any reason or even whim. Indeed, its ruling
Wednesday would allow even this particularly brutal form of abortion
in the unlikely event a doctor could ever show it was necessary to
save the life of the mother.
This was a ruling not so much in favor of life but in defense of the
dignity of life; and yet that is no small thing. When respect for
life is sacrificed, life itself is cheapened.
This decision represents a small but definite move back toward what
might be called the wisdom of repugnance, the instinctive recognition
that there are still some things we cannot bring ourselves to do --
even in the 21st century, and even after all the horrors of the 20th.
That's something -- a small something, perhaps, but something.
The legal dictum that this decision demonstrates most forcefully may
be the one uttered by Finley Peter Dunne's sage Irish scholar and
barkeep, Mister Dooley, at the turn of another century. Whether or
not the Supreme Court is following the Constitution, said Mr. Dooley,
one thing's for sure, "The Supreme Coort follows the iliction
returns."
Now that Sandra Day O'Connor has left the court, and its vague balance
has shifted to the right by one seat, it's as if a heavy fog had been
lifted from American law, and its outlines become almost visible again.
Justice O'Connor's role as the court's swing voter now has been taken
by Justice Kennedy, who may be moderate, even mushy, but at least
he's cogent about it.
My favorite part of Justice Ginsburg's loud, not to say screaming,
dissent is the one in which she denounces the majority opinion as
an "alarming" reversal of long established precedent. She
speaks for all those who think that, once a deeply contentious legal
(and moral) dispute has been decided in their favor, however morally
repugnant that decision, it must stand. Any retreat from it, even
a modest one, strikes those who love it as a most alarming betrayal,
rather than just another course correction. It never occurs to them
that nothing is really decided till it's decided right.
Roe v. Wade having been elevated to holy writ in some fervid quarters,
any further elaboration on the subject strikes abortion absolutists
as heresy. Much the way, in another morally deluded time, any attempt
to chip away at another blanket decision that was supposed to end
all discussion -- Dred Scott v. Sandford -- was assailed by slavery's
defenders as a breach of constitutional faith. Hadn't the highest
court in the land affirmed their sacred right to own another human
being? How dare these upstart abolitionist Republicans start chipping
away at that landmark decision.
This ruling from a narrowly divided court is no landmark victory for
life. It's just another small step away from the morally, ethically
and aesthetically repugnant. But of such small advances is civilization
made.


