Reading Justice Anthony Kennedy’s opinion in the partial birth abortion decision, just
handed down, can be tough going even for a recovering lawyer like
me. While he came out on the right side, i.e., banning the horrific
practice, he justified his majority opinion through a close reading
of and maneuvering through the labyrinth of the jurisprudence
established in Roe v. Wade and Doe v. Bolton.
Contrast Kennedy’s majority opinion with the short, concise
concurring opinion of Justice Clarence Thomas (Justice Scalia
concurring). While joining the Supreme Court’s opinion “because it
accurately applies current jurisprudence,” Thomas hastens “to
reiterate my view that the Court’s abortion jurisprudence
[citations omitted] has no basis in the Constitution.” Period. End
of story. Unfortunately, Chief Justice Roberts and Justice Alito
were no-shows on this concurring opinion.
Notwithstanding that Justice Kennedy’s opinion remained firmly
grounded in the deformities of Roe and its progeny, the
man deserves credit for an excruciating, factual, and grueling
statement of the underlying facts of the case, specifically the
horror which is abortion and partial birth abortion. He does not
mince words.
Kennedy cites a 1992 presentation by a Dr. Martin Haskell
describing the method of “intact D&E” (“dilation and
evacuation”):
The surgeon then forces the scissors into the base of
the skull or into the foramen magnum. Having safely entered the
skull, he spreads the scissors to enlarge the opening.
The surgeon removes the scissors and introduces a suction
catheter into this hole and evacuates the skull contents.
After quoting this clinical description, Justice Kennedy goes on to
relate the eyewitness testimony of a nurse who witnessed the same
method performed on a 26-and-a-half-week fetus:
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.
Kennedy notes that Dr. Haskell’s approach is not the only method of
“killing” (Kennedy’s word) the fetus once its head lodges in the
cervix. The procedures have evolved. He recites the gruesome litany
of alternative ways of accomplishing the same end. Again, relying
on Haskell, Kennedy says:
Another doctor, for example, squeezes the skull after
it has been pierced “so that enough brain tissue exudes to allow
the head to pass through.” [citations omitted] Still other
physicians reach into the cervix with their forceps and crush the
fetus’ skull. [citation omitted] Others continue to pull the fetus
out of the woman until it disarticulates at the neck, in effect
decapitating it. These doctors then grasp the head with forceps,
crush it, and remove it. [citations omitted]
Kennedy provides much more detail, but I will spare you, gentle
reader, from the gory details. You get the idea.
Previously, on this website, I have written
on the way language is distorted to obscure the reality of partial
birth abortion. Such obfuscation permeates all of federal
jurisprudence relative to the matter of abortion. Generally.
Justice Kennedy defers to those precedents more than I would
wish. Nevertheless, in this, his latest opinion, he is scrupulous
in setting out the complete record documenting the existential
realities of partial birth abortion.
It remains to be seen if he will conform his jurisprudence to
real life. But for now, at least, Justice Kennedy deserves our
praise for his landmark decision and his unflinching description of
what is at stake.
This decision will not make a significant dent in reducing the
1.3 million abortions performed each year in the United States, 85
to 90 percent of which occur in the first trimester of pregnancy.
But drawing a line between abortion and something very close to
infanticide, at almost the very moment of birth, is no small thing.
The forces promoting unlimited abortion, on demand, for all nine
months of pregnancy, will have to content themselves with that dark
achievement for the time being.
