Can lawyers debate the butchering of innocent children while keeping a straight face, and a settled stomach? The answer, apparently, is "almost." At least that’s what I saw from my center seat at the Supreme Court arguments Wednesday on partial birth abortion. I came away with three observations.
First, the pro-abortion side failed to emphasize stare decisis. In a debate last week on C-SPAN, and in conversations in the hallway before the argument, abortion advocates rather forcefully contended that this case is just like Stenberg v. Carhart, already decided in 2000, and that the only difference is the composition of the court. With this argument they hoped to sway not only Justice Anthony Kennedy but possibly Justice Sam Alito and Chief Justice John Roberts. But the two abortion attorneys did not drive home this point at oral argument. Numerous differences between these cases and the 2000 case were emphasized, most notably by Justice Stephen Breyer.
Second, in contrast, the first five minutes of Solicitor General Paul Clement’s second session were masterful. He explained that if the court refuses to recognize the state’s interest in separating abortion from infanticide, over and above the vague "health" interest that supposedly necessitates partial birth abortion, then the Casey "compromise" crafted by Kennedy himself would be meaningless, and we would go back to the regime of 1980s cases that Casey overruled wherein practically no state interest in pre-born human life was legitimate. This argument not only targeted Kennedy and echoed his dissent in Stenberg, but it visibly quieted the justice, who thoughtfully leaned back in his seat after having engaged in persistent inquiry for over an hour.
At the crescendo of Clement’s verbal symphony, Justice John Paul Stevens abruptly looked to his right at Kennedy, perhaps marveling as I did at the effect the argument seemed to be having on his colleague. When Clement finished Kennedy sat speechless, and Stevens promptly changed the subject.
Third, at several moments the underlying horror of the situation broke through. Justice Ruth Bader Ginsburg was fond of emphasizing that children affected by this law were not going to live anyway, leaving unsaid the cause of her certainty—that the hit man would resolutely accomplish his task one way or another. Clement turned this into what seemed to be an odd argument for the "pro-life" side, when he minimized the health need for partial birth abortion by insisting that abortionists can easily dismember the baby or administer a lethal injection.
The most poignant moment, however, occurred when the Planned Parenthood attorney mentioned that women often prefer an "intact" abortion instead of dismemberment. Roberts asked why they would prefer it, and the attorney stumbled over the answer and talked about how personal the choice was. But many in the room suddenly realized that we were talking about a mother preferring one method of executing her child over another. Regrettably, no one mentioned the oh-so-personal practice of late-term abortionists such as George Tiller, who dress up their victims after the murder and baptize their lifeless bodies in the mother’s presence, to help them say "good bye."
Another obvious but unmentioned reason for preferring partial birth abortion could be to preserve the child’s organs for fresh, live harvesting and experimentation, rather than to get the mess that results from tearing off arms and legs one at a time ("disarticulation of extremities," as they say). Very fresh harvesting occurs, for example, in fetal pancreas research published by University of Wisconsin-Madison) scientists, though it is not clear what abortion method is used.
Along these lines Justice Antonin Scalia limited himself to comments that illustrated the absurdity of the situation, wherein the Court had to struggle over whether a state may outlaw these atrocities. When Justice Stevens awkwardly insisted that Clement talk of a fetus rather than a child, Scalia remarked that "when it’s halfway out, I guess you can call it either a child or a fetus." Or when the Planned Parenthood attorney discussed whether the fetus dies before or after delivery of its ripped-off parts, Scalia resolved the dilemma by pointing out that we generally don’t speak of a "leg" dying. And Scalia asked whether it would be criminal to deliver the baby all the way and just let him die. This contextualized the argument that partial birth abortion is the “safest option,” by implying that it is only the safest abortion option. Delivering the baby all the way without puncturing his head would often be the safest "option" at this moment, so as to avoid committing that violent, piercing act so near the woman’s body (sometimes the abortionist even has to hold the head in to prevent the magical occurrence of personhood). But pro-aborts want a healthy execution, not women’s health in general. And they are not yet public members of the Peter Singer fan club.
So perhaps only one thing is certain. We should expect another concurrence from Scalia, probably a short one this time, but one that again asks the court to acknowledge what everyone who has eyes to see already knows: the moral absurdity that is Casey and Roe.