John E. Dunsford on Abortion
From one point of view, the Supreme Court’s 5 to 4 decision in Stenberg v. Carhart, shielding partial-birth abortion from legislative prohibition, is a solid victory for the proponents of choice. From another point of view, however, there is reason to believe that the decision may prove to be costly to those defending abortion as a “right,” as the full implications of the opinion are absorbed by the American public and become part of its consciousness.
Abortion activists are anxiously aware that the long-range prospects of their cause are dubious, since the opinion polls indicate that the degree of public acceptance of abortion has been steadily receding. For one example, a Los Angeles Times poll shows that nearly 57 percent of both men and women consider abortion to be “murder.” Carhart will accelerate that negative trend, because (1) it illustrates dramatically what abortion actually represents, and (2) it elicits nagging questions about the legitimacy of Roe v. Wade itself.
A Gruesome Procedure
One may reasonably assume that Justice Stephen Breyer approached the task of writing the majority opinion (representing Justices Sandra Day O’Connor, John Paul Stevens, David Souter, and Ruth Bader Ginsburg) with some trepidation, precisely because the subject is partial-birth abortion.
This is a late-term abortion in which a physician dilates the mother’s cervix, inserts forceps into her uterus, pulls the lower extremity of the fetus into the vagina, forces scissors into the base of the fetus’s skull, inserts a suction catheter into the hole, and sucks out the contents of the head in order to remove a dead fetus. The name is applicable because the baby is in a position to be born except that he is killed before he emerges totally from his mother.
Early in the opinion Justice Breyer apologized for the fact that, as the procedures he would describe dealt with the termination of “potential [ sic] human life,” his prose might seem “clinically cold or callous to some, perhaps horrifying to others.” Of course, he was right.
Indeed, during the oral argument of the case, one of the other justices (O’Connor) called the methods before the Court for terminating the life of a fetus “rather gruesome procedures.” That is the reason that some 73 percent of Americans in opinion polls favor banning partial-birth abortion after receiving only a brief description of the procedure. And that is the reason some thirty states have passed laws prohibiting some form of the procedure. Three times the Congress approved similar legislation by large margins, only to have it vetoed by President Clinton.
Since five members of the Supreme Court voted to prevent the State of Nebraska from prohibiting partial-birth abortion, they could scarcely avoid the obligation to explain what it was they were allowing. As their spokesman, Justice Breyer had the unpleasant assignment of describing the D&X (Dilation and Extraction) procedure under review.
Perhaps hoping to obscure the horror of the procedure when rendered in plain English, he offered the medical definition of the D&X procedures provided by the American College of Obstetricians and Gynecologists. The College’s definition described the procedure in four steps:
1. deliberate dilatation of the cervix, usually over a sequence of days;
2. instrumental conversion of the fetus to a footling breech;
3. breech extraction of the body excepting the head; and
4. partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.
But one of the dissenters, Justice Anthony Kennedy, stepped forward to fill in some of the details of the procedure, relying on the evidence in the record. After the cervix is dilated, he wrote in his dissenting opinion,
the fetus’ arms and legs are delivered outside the uterus while the fetus is alive; witnesses to the procedure report seeing the body of the fetus moving outside the woman’s body. . . . At this point, the abortion procedure has the appearance of a live birth. As stated by one group of physicians “as the physician manually performs breech extraction of the body of a live fetus, excepting the head, she continues in the apparent role of an obstetrician delivering a child.” . . . With only the head of the fetus remaining in utero, the abortionist tears open the skull.
Noting that one advocate of the procedure has said that a pair of scissors is “the appropriate instrument” to be used at this stage of the abortion, Justice Kennedy continued:
Witnesses report observing the portion of the fetus outside the woman react to the skull penetration. . . . The abortionist then inserts a suction tube and vacuums out the developing brain and other matter found within the skull. The process of making the size of the fetus’ head smaller is given the clinically neutral term “reduction procedure.”
. . . Brain death does not occur until after the skull invasion, and, according to Dr. Carhart, the heart of the fetus may continue to beat for minutes after the contents of the skull are vacuumed out. . . . The abortionist next completes the delivery of a dead fetus, intact except for the damage to the head and the missing contents of the skull.
Most readers of the opinion will agree with Justice Antonin Scalia that this method of killing the fetus “is so horrible that the most clinical description of it evokes a shudder of revulsion.” Apparently conscious of this widespread reaction, those justices in the majority took pains to deplore the “emotional uproar” that is generated (and the ink that is spilled) by those reacting to the gruesomeness of partial-birth abortion. They took some cover in the statistics cited by Justice Breyer that the D&X procedure is, according to estimates, performed only 640 to 5,000 times a year. (Only?)
A Remarkable Argument
But the most remarkable aspect of their opinion is their reliance on the counter argument that the procedure is (in Justice Stevens’s words) no “more brutal, more gruesome or less respectful of ‘potential life’ than the equally gruesome” D&E (Dilation and Extraction) method, a second-trimester procedure that would remain legal even if the ban on partial-birth abortion was upheld.
According to Justice Stevens, “the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other . . . is simply irrational.” As Justice Ginsburg put it in her concurring opinion, the D&E method is “no less distressing or susceptible to gruesome description” than the D&X.
In effect, therefore, a person concluding that partial-birth abortion is barbaric would be compelled to form the same judgment about the D&E abortion, and this at least two justices saw as an argument for approving both of them. The Court estimated that approximately 10 percent of all abortions are performed in the second trimester, most with the D&E procedure.
Again, Justice Breyer depended upon a scientific description of the procedure, this time provided by the American Medical Association:
D&E is similar to vacuum aspiration except that the cervix must be dilated more widely because surgical instruments are used to remove larger pieces of tissue. Osmotic dilators are usually used. Intravenous fluids and an analgesic or sedative may be administered. A local anesthetic such as a paracervical block may be administered, dilating agents, if used, are removed and instruments are inserted through the cervix into the uterus to removal fetal and placental tissue. Because fetal tissue is friable and easily broken, the fetus may not be removed intact. The walls of the uterus are scraped with a curette to ensure that no tissue remains.
And again it was Justice Kennedy, relying on the testimony of the physician abortionist in the case, Dr. LeRoy Carhart, who provided the awful particulars. This procedure “requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina,” he began.
Dr. Carhart uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the remainder of the body. . . . The traction between the uterus and vagina is essential to the procedure because attempting to abort a fetus without using that traction is described by Dr. Carhart as “pulling the cat’s tail” or “dragging a string across the floor, you’ll just keep dragging it. It’s not until someone grabs the other end that you are going to develop traction.”
In many cases, Justice Kennedy continued, the unborn child
dies just as a human adult or child would: It bleeds to death as it is torn from limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off. Dr. Carhart agreed that “when you pull out a piece of the fetus, let’s say, an arm or a leg and remove that, at the time just prior to removal of the portion of the fetus . . . the fetus [is] alive.”
Ultrasound had shown Dr. Carhart the fetus’s heart beating even with “extensive parts of the fetus removed.”
[Carhart] testified that mere dismemberment of a limb does not always cause death because he knows of a physician who removed the arm of a fetus only to have the fetus go on to be born “as a living child with one arm.” . . . At the conclusion of a D&E abortion no intact fetus remains. In Dr. Carhart’s words, the abortionist is left with “a tray full of pieces.”
What “Choice” Signifies
And so Stenberg v. Carhart has become part of the official legal archives of the United States, available to be scrutinized by the ordinary citizen. There is no covering of the eyes to the manner in which prenatal life is treated in our society in the year 2000, for those who have eyes to see.
Young Americans growing into adulthood no longer need wonder what the secular mantra of “choice” signifies. They will know what exactly it is that mothers are allowed to choose. They will understand the testimony of registered nurse Brenda Pratt Shafer, testifying in 1996 before the Senate Judiciary Committee:
On the ultrasound screen, I could see the heart beating . . . the baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.
As things stand now, there is no acceptable restriction on the freedom of a pregnant woman to kill the unborn child in her womb, and it does not matter how or when it is done, if a complaisant doctor is at hand to sanction it. The question remains whether such a proposition is tenable in a civilized society.
—John E. Dunsford is the Chester A. Myers Professor of Law, Saint Louis University School of Law, St. Louis, Missouri.
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