NASHVILLE, Tenn. (BP)–The U.S. Supreme Court building is a monumental structure, an identifiable edifice that is striking not just for its architecture, but also for the process of justice that it represents. The symbolism of its entryway façade with the words “EQUAL JUSTICE UNDER LAW” is timeless.
Wednesday, the nine justices now serving in this prominent landmark issued a ruling that is no less monumental. In a 5-4 decision, the court upheld the federal ban on the grisly procedure known as partial-birth abortion, with Roberts, Scalia, Thomas, Alito and Kennedy forming the majority and Ginsburg, Stevens, Souter and Breyer expressing dissent.
Observers had guessed the composition of the conservative and liberal blocs that formed, except that Kennedy was viewed as an unknown, a moderate jurist who could decide either way.
Writing the majority opinion, Kennedy decidedly established a new direction for the court, emphasizing a remade perspective on abortion restrictions by underscoring the state’s valid interests in “respect for life, including the unborn.” To be sure, Kennedy was clear to reaffirm the Roe v. Wade precedence establishing a woman’s right to an abortion — before “fetal viability” — that is free from undue burden by the state. However, he set a new course for the future by creating a new lens through which future cases must be viewed.
Kennedy called attention to women who regret their choice to abort the “infant life they once created,” adding that lack of prior information about the procedure only increases the anguish and sorrow for these women.
The opinion noted Congress’ finding that “respect for human life finds an ultimate expression in a mother’s love for her child,” with Kennedy adding that some doctors do not disclose details about abortion procedures and that “precisely this lack of information … is of legitimate concern to the State.”
“The State has an interest in ensuring so grave a choice is well informed,” Kennedy wrote. “… It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions.”
In his own push for full disclosure, Kennedy described the many brutal ways — in addition to partial-birth abortion — that are used to dismember and otherwise kill an unborn child. Regarding partial-birth abortion, he used the narrative of an abortionist to give the cold, step-by-step, details of the procedure. And he used the testimony of a nurse who observed the startled baby jerk and flinch before going limp after the abortionist cut open the back of the baby’s skull and suctioned out the brains.
Importantly, he validated Congress’ finding that “partial-birth abortions are similar to killing a newborn infant” and that legislators could draw boundaries “to prevent practices that extinguish life and are close to actions that are condemned.”
Don’t get me wrong, upholding the partial-birth abortion ban does nothing to overturn Roe v. Wade or Doe v. Bolton, which greatly expanded Roe’s impact. However, this is the first time since Roe v. Wade became the law of the land that the court has attempted to balance any right of the unborn (by validating the government’s interest in protecting it) with a woman’s right to abortion.
Kennedy himself seems to describe a new day for the court in writing about the court’s past tendency to treat with hostility any attempt to regulate abortion. “The Court at times employed an antagonistic ‘canon of construction under which in cases involving abortion, a permissible reading of a statute (was) to be avoided at all costs'” (quoting himself from a previous dissenting opinion where he quoted from another opinion).
Writing a strongly worded dissent, Justice Ginsberg seemed strenuously to object even to the notion that any right can be balanced against a woman’s right to an abortion.
“In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women’s lives.”
What Ginsberg misses is that the absolutist claims of a right to abortion have more than chipped away at the notion of equal justice under the law, especially with regard to the right to life of the unborn.
In 2006, major work was completed on the entryway façade as part of a modernization program for the entire building that began in 2003 (coincidentally, the same year President Bush signed the PBA Ban Act into law). The entrance received more than a fresh look as major structural repairs were made, including the replacement of a piece of marble that fell from near the peak of the building’s pediment and that was part of the framing for the nine sculptural figures sitting atop the famous words, “EQUAL JUSTICE UNDER LAW.”
The modernization program is scheduled for completion in 2008, conjuring even more symbolism because it coincides with a presidential election year.
Wednesday’s ruling is a step in the right direction to restoring the notion of EQUAL JUSTICE UNDER LAW within the walls of the U.S. Supreme Court building.
However, it likely will be 2008 before America knows whether this change in perceiving the life of the unborn is moving toward permanence in jurisprudence or simply was a temporary fix.
Will Hall is executive editor of Baptist Press.