Kennedy's (bare) majority opinion acknowledges that the government of these United States has a legitimate interest in preserving human life, including fetal life. Our times are such that such an admission comes as a revolutionary announcement worthy of front-page headlines across he country.
Let it be duly noted that the high court did not rule against abortion itself at any time and for any reason or even whim. Indeed, its ruling Wednesday would allow even this particularly brutal form of abortion in the unlikely event that a doctor could ever show that it was necessary to save the life of the mother.
This was a ruling not so much in favor of life but in defense of the dignity of life; and yet that is no small thing. When respect for life is sacrificed, life itself is cheapened.
This decision represents a small but definite move back toward what might be called the wisdom of repugnance, the instinctive recognition that there are still some things we cannot bring ourselves to do-even in the 21st century, and even after all the horrors of the 20th. That's something-a small something, perhaps, but something.
The legal dictum that this decision demonstrates most forcefully may be the one uttered by Finley Peter Dunne's sage Irish scholar and barkeep, Mister Dooley, at the turn of another century. Whether or not the Supreme Court is following the Constitution, said Mr. Dooley, one thing's for sure, "The Supreme Coort follows the iliction returns."
Now that Sandra Day O'Connor has left the court, and its vague balance has shifted to the right by one seat, it's as if a heavy fog had been lifted from American law, and its outlines become almost visible again. Justice O'Connor's role as the court's swing voter now has been taken by Kennedy, who may be moderate, even mushy, but at least he's cogent about it.
My favorite part of Justice Ginsburg's loud, not to say screaming, dissent is the one in which she denounces the majority opinion as an "alarming" reversal of long established precedent. She speaks for all those who think that, once a deeply contentious legal (and moral) dispute has been decided in their favor, however morally repugnant that decision, it must stand. Any retreat from it, even a modest one, strikes those who love it as a betrayal of the most alarming sort, rather than just another course correction. It never occurs to them that nothing is really decided till it's decided right.
Roe v. Wade having been elevated to holy writ in some fervid quarters, any further elaboration on the subject strikes abortion absolutists as heresy. Much the way, in another morally deluded time, any attempt to chip away at another blanket decision that was supposed to end all discussion, Dred Scott v. Sandford, was assailed by slavery's defenders as a breach of constitutional faith. Hadn't the highest court in the land affirmed their sacred right to own another human being? How dare these upstart abolitionist Republicans start chipping away at that landmark decision!
This ruling from a narrowly divided court is no landmark victory for life. It's just another small step away from the morally, ethically and aesthetically repugnant. But of such small advances is civilization made.