Toward life: The court takes a small step

Paul Greenberg

4/25/2007 12:01:00 AM - Paul Greenberg

So what's the significance, if any, of the latest decision from the U.S. Supreme Court in the never-ending legal seesaw that began with Roe v. Wade and isn't about to end any decade soon?

Gonzales v. Carhart is neither the Great Triumph for the forces of light that the pro-life camp was celebrating last week, nor the End of Women's Rights that pro-choice organizations were bemoaning.

It is just one more slight move of the legal marker that determines the degree of barbarity now permitted in our "civilization."

The high court's decision Wednesday wasn't against abortion on demand but just one particularly abhorrent form of it that's more like semi-infanticide; it involves half-delivering the child before Š well, even the antiseptic medical description of the procedure should be enough to revolt anyone with minimal moral or aesthetic sensibilities.

As for the simpler-to-understand description offered by a nurse, whose testimony is cited in the majority opinion, it could have come from one of the more lurid anti-abortion tracts. But this kind of thing has been standard operating procedure in American medicine, and perfectly acceptable American law, until last Wednesday.

No wonder the doctors who do this thing prefer to use Latinate euphemisms like Intact Dilation and Evacuation rather than partial-birth abortion, which comes entirely too close to accuracy for comfort. The simple meaning of words must be blurred before the unacceptable becomes routinely accepted in society. Much better to call killing termination, and abortion choice. Verbicide, said C.S. Lewis, always precedes homicide.

Now the nation's highest court, which has come to double as our moral arbiter, has solemnly decided that the several states may indeed bar this atrocity. By a vote of 5 to 4.

The majority opinion by Justice Kennedy was a finely reasoned effort to make sense of a slight retreat from anything-goes abortion law to almost anything goes. The minority dissent, by Justice Ginsburg, was the legal equivalent of jumping up and down and yelling. If doctors cannot end life in this particularly gruesome way, according to the Ginsburg Doctrine, it's clearly the end of Western civilization rather than what it is: the smallest possible gesture of respect for what remains of it.

This ruling is scarcely a landmark, but it does have a certain significance. It may indicate that the pendulum has finally reached one extreme in this debate and begun to swing back, however slightly. At least let's hope so.

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.