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Two Murky cases at the High Court

published April 30, 2007

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Justice Ruth Bader Ginsburg, writing for the four dissenters, was equally sludgy, but at least she penned a few good lines. I leave them for another day.

It was a low score for the high court, but except for the clumsy surgery performed upon the Constitution, not much damage was done. In the overwhelming number of cases to come, a woman's right to an abortion remains intact even if her incipient infant is washed down a drain. One especially ugly procedure is now prohibited, but there is much less here than at first met the eye.


The two cases that together were fumbled last week involved an act that Congress passed four years ago. This was the Partial-Birth Abortion Ban Act of 2003. The act threatens doctors with prison if they perform a certain rare but ugly procedure. Those who sponsored the act should have been ashamed. The very title betrayed their careless draftsmanship.

Four Nebraska obstetricians challenged the act. They won in the eighth Circuit. Meanwhile, in the 10th Circuit on the West Coast, Planned Parenthood also won an injunction against the law's enforcement. Last week's wordy wallow in the Supreme Court had the effect of reversing both decisions.

Or so it seemed. Let me skip the supportive citations and quote from the final paragraphs of Kennedy's opinion.

The complaining obstetricians, he said, "have not demonstrated that the act would be unconstitutional in a large fraction of relevant cases. We note that the statute here applies to all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications. It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop ..."

Then he waffled: "The act is open to a proper as-applied challenge in a discrete case. No as-applied challenge need be brought if the prohibition in the act threatens a woman's life because the act already contains a life exception."

In their final paragraph, Dr. Kennedy, Dr. Roberts, Dr. Scalia, Dr. Thomas and Dr. Alito conclude that the complaining obstetricians have not made their case. They have not demonstrated that the act imposes "an undue burden on a woman's right to abortion" based on the act's "overbreadth or lack of a health exemption." But, clearly, the right itself remains.

Kennedy's majority opinion gurgled along for 39 pages. It could usefully have been cut by one-half to two-thirds without losing a single essential point. On page 17 he fell in love with a term of the surgeon's art: "anatomical landmark." It gave him something to steer by. An overt act, he said, must occur after the delivery of a fetus to an anatomical landmark. He felt judicially compelled to explain, as a justice of the Supreme Court, that in a particular procedure, "a doctor delivers the fetus until its head lodges in the cervix, which is usually past the anatomical landmark for a breech presentation."

What remarkable jurisprudence! Behold: "A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed) into the cervix ..." Kennedy might have been writing for an anti-abortion magazine. What verbs! What adjectives! A doctor inserts "grasping forceps into the uterus to grab the fetus." The friction "causes the fetus to tear apart." For example, "a leg might be ripped off the fetus as it is pulled through the cervix ..." Once past a particular landmark, "the doctor pierces the fetal skull with scissors or crushes it with forceps."

Kennedy felt obliged to quote at least a little — very little — of the statute he was construing. The law applies to "any physician who in or affecting interstate or foreign commerce , knowingly performs a partial-birth abortion and thereby kills a human fetus."

In the name of the Founding Fathers, one is bound to ask, how does the court equate the vaginal canal and the Erie Canal? How does an abortion in Omaha affect commerce to Kansas City? Kennedy does not pause to explain. He simply assumes, ipso facto, mumbo jumbo, that the Constitution authorizes Congress "to protect the life of a fetus that may become a child." The constitutional connection is ephemeral.

Kennedy's flawed opinion was the end product of oral argument in November. It should have been aborted five months ago.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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published April 30, 2007

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