By Thomas Oliphant, Globe Columnist, 5/1/2000WASHINGTON
The State of Nebraska got caught red-handed here last week.
The exposure was technically legal in nature, and because it was before the Supreme Court there was enough of a veneer of gentility to cushion the blow’s humiliating severity.
But in getting caught in several acts of out-and-out deception, Nebraska’s effort to argue for its statute banning ”partial-birth abortion” was not only unmasked as fraudulent in open court; the equally important politics of ”partial-birth abortion” were changed utterly.
From now on, no slogan-spouting antiabortion politician can responsibly say he opposes ”partial-birth abortion” without answering the simple question, ”What’s that?” What was demonstrated last week is that the question cannot be answered, which turns out to have been the deceptive purpose of this six-year political farce all along. George W. Bush, to pick one example, has had a free ride on this dishonest formulation long enough.
The problem poor Donald Stenberg, Nebraska’s attorney general, faced in oral argument before the court was how to explain why the statute avoided specifying the act it purported to criminalize.
In fact, in none of the 31 state statutes enacted to date (plus a bill passed twice by Congress and vetoed twice by President Clinton) is ”partial-birth abortion” the actual target. By now, presumably a few people have gotten past the evasions to learn that the term is entirely a public relations fabrication and has no medical meaning.
The Nebraska statute at issue is typical, criminalizing any procedure ”in which the person performing the abortion partially delivers vaginally a living unborn child before killing the child and completing the delivery.”
What tripped Stenberg up and unmasked the nefarious purpose behind the law is the fact that doctors say that the language can cover two kinds of procedures.
One – dilation and extraction – is used very late in pregnancy and involves dilating the cervix so the fetus comes into the vagina feet first. Collapsing the skull and suctioning out the brain allows the head’s delivery. This is the stuff of the antiabortion movement’s famous cartoons pretending that a ”baby” right out of a Good Housekeeping ad is killed on the verge of live birth. In reality, the fetus involved is often brain-dead or otherwise hopelessly flawed, and the procedure protects the woman’s health, including her ability to have children in the future.
The other – dilation and evacuation – is used commonly in the second trimester of pregnancy. It involves removing the fetus in sections from the uterus, during which it is common, for example, for the arm or leg of a living fetus to be pulled into the vagina.
Stenberg tried to argue that criminalizing only the former was the state’s intent, claiming a valid state interest in ”drawing a bright line between infanticide and abortion.” He then claimed that it was no big deal anyway because the procedure is used so rarely that banning it would have no impact on the choices of the vast majority of pregnant women. That was the first clue to the deception, since when this fight was just beginning, the antiabortion movement was claiming just the opposite.
But if outlawing dilation and extractions is the intent, as Stenberg claimed, why not specifically outlaw them by name? His failure to answer was bad enough, but the legislative history in Nebraska three years ago is much worse. It turns out that an effort was made in the state Senate to amend the bill to ban dilation and extractions specifically, and it was defeated in a 27-11 vote.
Indeed, the bill’s chief sponsor opposed the amendment because, he said, it would change ”what the bill is designed to do,” namely, to ban both procedures and breach Roe v. Wade’s wall between allowable regulations during the second trimester (for safety only) and during the third (when abortions can be banned as long as there are exceptions to protect the life and health of the woman). The absence of a health exception in all the phony antiabortion statutes is flagrant icing on the factual cake.
”That’s just glaring here,” said Justice Ruth Bader Ginsburg of Stenberg’s twisted presentation, for which dissembling would be a mild adjective.
Speaking for his two antiabortion colleagues – Chief Justice William Rehnquist and Clarence Thomas – Antonin Scalia sounded less like a jurist and more like a pol. Since he acknowledges no right to choose under Roe, any pregnancy regulation is permissible.
The collapse of Nebraska’s argument foreshadows the collapse of the political case as well after nearly a decade of fraudulent claims.
The issue is not ”partial-birth abortion.” It’s the right to choose, and if he wins the right to make two appointments to the court, Governor Bush is a dagger aimed straight at it.
Thomas Oliphant is a Globe columnist.
This story ran on page A19 of the Boston Globe on 5/1/2000.