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Supreme Court unyielding on abortion, critics say after partial-birth ruling

WASHINGTON (BP)–The U.S. Supreme Court’s opinion in striking down Nebraska’s ban on partial-birth abortion removed all doubt whether the court, with its current membership, will permit any meaningful limit on an abortion technique, no matter how vile.

Pro-life advocates and a high court justice acknowledged as much, even though others took some hope in a comment from Associate Justice Sandra Day O’Connor. In a concurring opinion, O’Connor, who voted with the five-person majority, said a narrow ban on partial-birth abortion that included an exception to protect the “life and health of the mother would be constitutional in my view.”

An exception for the mother’s health, however, would be meaningless, critics pointed out.

The court “must know (as most state legislatures banning this procedure have concluded) that demanding a ‘health exception’ . . . is to give live-birth abortion free rein,” Associate Justice Antonin Scalia wrote in a scathing dissenting opinion.

The reason such an exception would have virtually no impact on partial-birth abortion is 27 years old. When the high court legalized abortion in the 1973 Roe v. Wade opinion, it declared in a companion decision health for abortion purposes included “all factors — physical, emotional, psychological, familial and the woman’s age — relevant to the well-being of the patient.” Since then, the health exception has been used to undergird what pro-lifers call an abortion-on-demand regime.

“This case makes absolutely clear that the supreme value of the majority of this court is the preservation of an extremely expansive, absolute right to abortion under any circumstances for the entirety of the nine months of pregnancy as long as the woman and her doctor can concoct a health reason no matter how flimsy or contrived their definition of that health reason is,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, after the June 28 Stenberg v. Carhart ruling.

An exception for the health of the mother is “a provision which in reality nullifies the ban itself,” Land said.

“It is now evident how far the court will go in applying Roe v. Wade and its subsequent pro-abortion rulings — even to the justification for infanticide.”

Scalia predicted in his dissent the court’s opinion would be “greeted by a firestorm of criticism — as well it should.” He was not wrong.

One member of Congress even questioned how God would respond.

Quoting the words of Thomas Jefferson, Sen. Sam Brownback, R.-Kan., said in a written statement, “I tremble for my country when I recall that God is just.”

Rep. Joseph Pitts, R.-Pa., said in a written release the court had “imposed infanticide on a decent nation.”

Judie Brown, president of American Life League, predicted in a written release, “Ten, 15 or 20 years from now, [Stenberg v. Carhart] will be cited to justify the selective termination of infants, toddlers, grandparents and the disabled.”

Chuck Donovan, executive vice president of Family Research Council, called it the “cruelest, most unjust ruling in American history.”

Scalia and Land both compared the ruling to previous decisions of ill repute.

“I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this court’s jurisprudence beside Korematsu [the World War II opinion that allowed American citizens of Japanese descent to be imprisoned] and Dred Scott [the pre-Civil War decision upholding slavery,]” Scalia wrote.

Land compared it to Dred Scott; Plessy v. Ferguson, the 1896 opinion that legalized the “separate but equal” doctrine for the races, and Roe v. Wade.

“If this pro-infanticide decision is allowed to stand over time, it will go down in the Supreme Court’s Hall of Shame” with those rulings, Land said.

The procedure that elicited revulsion from much of the populous is typically performed in the fifth or sixth month of pregnancy. As popularized by some abortion doctors in the early 1990s, it involves the delivery of an intact baby feet first until only the head is left in the birth canal. The doctor pierces the base of the baby’s skull with surgical scissors, then inserts a catheter into the opening and suctions out the brain. The collapse of the skull enables easier removal of the dead child.

A Gallup poll released June 28 showed 66 percent of the American public opposed partial-birth abortion being legal, while only 29 percent favored it.

“Fortunately, our system of government gives us two options to rein in a court so completely at odds with American public opinion,” Land said. “This is still government ‘of the people, by the people and for the people,’ and the people can overrule the Supreme Court.

“First, they can support presidential candidates who will if elected only nominate and can vote for senators who if elected or reelected only confirm justices who will overturn this outrageous and barbaric opinion. Second, we can revive and begin the process of adding a human life amendment to the Constitution that will explicitly guarantee unborn children the protection under the law currently afforded only fully born children who have managed to completely escape their mother’s body.”