Hank Kalet

Sometimes even Ruth Marcus makes sense. She writes in her column today that the U.S. Supreme Court’s decision last week to let stand a federal ban on so-called partial birth abortions “was alarming for a number of reasons.”

First, the majority’s unstated but unmistakable willingness to dispense with inconvenient precedent. As nominees, the president’s two choices for the high court treated us to pious pronouncements about their respect for the rule of law.

But they didn’t flinch in overturning, in all but name, a seven-year-old case in which a differently constituted court, considering a nearly identical statute, came out the other way. For all that talk about impartially calling balls and strikes, Mr. Chief Justice, it turns out that it matters a whole lot who the umpires are.

Second, the Father Court Knows Best tone of Anthony Kennedy’s majority opinion. “Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” Kennedy intoned. This is one of those sentences about women’s essential natures that are invariably followed by an explanation of why the right at stake needs to be limited. For the woman’s own good, of course.

Women, Justice Anthony Kennedy wrote for the majority, may come to regret their decision later, especially “when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.”,

This, of course is a slippery slope, as Marcus points out, the state’s right to step in here easily expanded to include a broader array of prohibitions.

But if Congress can ban the partial-birth procedure, why can’t it express its “ethical and moral concerns” with the standard procedure for second-trimester abortions, dilation and evacuation? As Kennedy notes, this procedure, in which the fetus is dismembered before being removed, is “in some respects as brutal, if not more,” as the partial-birth procedure.

Why can’t Congress impose its ethical views by requiring any woman seeking an abortion to wait a few weeks, watch a sonogram of her developing fetus, listen to an antiabortion lecture?

The decision is a real reminder of what is at stake in 2008, especially when you consider that Justice John Paul Stevens, the court’s most liberal judge, is likely to retire. A conservative Republican is likely to follow the script written by President George W. Bush, a script that gave us Chief Justice John Roberts and Associate Justice Sam Alito.

The decision, for me, is not just about abortion (I remain ambivalent about abortion), but about the rights of women to decide for themselves how to live and what to think, and it is about respect for precedent and the longterm impact that a conservative court that is hostile to the notion of individual rights but sanctions executive privilege might mean for the future of America.

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