It was last Monday – the day of the Virginia Tech massacre – when the Supreme Court announced its decision in the partial-birth abortion case.
It was no wonder, then, that the decision received less-than-detailed public attention.
The court decision represents a rather minor shift in the legal landscape in that it affects a tiny percentage of all abortions, but no one would be able to discern that fact from the comments that greeted it.
Indeed, one could hardly recognize the scope of the decision from the reaction to it. It is as though the various groups, pro or con, didn’t have time to read the decision before either condemning or praising it.
There is really nothing mysterious about the ruling itself. The Supreme Court, by a vote of 5 to 4, reversed lower court decisions that found a federal ban on partial-birth abortions was unconstitutional on its face because it didn’t contain an exception to protect the health of the woman. (Abortion partisans, by the way, like to use the phrase “health of the woman,” while abortion foes prefer to say the “health of the mother.”)
The court majority explains that the failure to include a health exception is not crippling in view of the fact that other medical options exist for that purpose. The court concluded that Congress, in passing the act, was not trying to impose a substantial obstacle to late-term abortions. The act’s stated purpose, the court said, was to protect innocent human life from a brutal and inhumane procedure and to protect the medical community’s ethics and reputation.
Importantly, the court’s decision says that the facial constitutional challenges should never have been entertained or approved by the lower courts. The high court did leave the door open to a future specific challenge in which a woman would have the opportunity to prove that a partial-birth abortion is her only medical option.
Given the state of medical opinion today, that is going to be a very tough task.
So what were the reactions to this holding? Dr. LeRoy Carhart of Nebraska, who was a party to the case, said, “I am afraid the Supreme Court has just opened the door to an all-out assault on the 1973 ruling in Roe vs. Wade.” Carhart is surely wrong. Only two justices, Antonin Scalia and Clarence Thomas, signed a concurring opinion in which they said the Roe decision had no basis in the Constitution. The other three justices in the majority could have signed that opinion but chose not to do so.
The National Organization for Women (NOW) reacted by simply misstating history. It said the law was enacted by President Bush and conservatives in Congress. In fact, Bush signed it but the ban had substantial Democratic support. In addition, NOW claimed the banned procedure was “the most common abortion procedure used after 12 weeks of pregnancy.” That is deliberate nonsense, as both the law and the court have made clear.
The distortions are not all coming from pro-abortion groups. The Christian Coalition of America declared, “It is just a matter of time before the infamous Roe vs. Wade decision will also be struck down by the court.”
Rev. Rob Schenck, president of the National Clergy Council, said, “Make no mistake, this is the beginning of the end for Roe v. Wade.”
Only the Priests for Life group got it right when it celebrated the decision and correctly described the court’s limited holding.
Still, if there were a contest for the most outrageous distortions, NARAL Pro-Choice America would win hands down. For one thing, the organization insists on calling the congressional act “Bush’s Federal Abortion Ban.” For another, it claims the court has given the green light to additional attacks on safe, legal abortions, without any regard for a woman’s health.
This statement flies directly in the face of the court’s ruling, which says flatly that the “court assumes” that the ban on partial-birth abortions would be unconstitutional if it “subjected women to significant health risks.” The reason the ban is constitutional is precisely because it does not present those risks.
Citizens who have a genuine interest in these matters cannot find the truth amid the partisan characterization. The truth can only be located in the decision itself.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His column appears on Wednesdays.
