It was supposed to be this way.
In the early 1990s, the pro-life community, on the run after electoral and judicial defeats, chose to target partial-birth abortions because they were so heinous (though exceedingly rare), opposed by so many Americans (approximately 70%), and put the pro-choice community on its heels. Who, after all, really wanted to be on the side of protecting a procedure that required partially delivering a baby that could almost certainly live on its own, and puncturing its skull in order to abort it? No one.
It was a huge strategic change for the pro-life community. No longer was it an “all or nothing” world with overturning Roe v. Wade as the single measure of success. The pro-life movement settled in for the long haul. It made peace with a pro-choice world. And that is the context in which we need to look at today’s decision.
Today the United States Supreme Court upheld a ban on a procedure that is little more than infanticide. But it did something else. Nothing. It didn’t overturn Roe. It didn’t hint at overturning Roe. It didn’t even throw a brick at Roe. If anything, Roe is arguably more solidly enshrined as law than it was before this decision. As The New York Times reports, “Justice Kennedy took pains to describe the decision as faithful to the court’s earlier rulings, including the one in the Nebraska case. He said that by defining the prohibited procedure more precisely, the federal law avoided the vagueness the court had found in the Nebraska statute and thus did not place doctors at risk of violating it inadvertently.”
Justice Kennedy, who wrote for the majority, and who voted to uphold Roe in 1992’s Casey decision, has long opposed partial-birth abortions and has written for their ban in earlier decisions. His vote today was hardly a surprise. That Bush’s two new justices – Roberts and Alito voted to uphold the ban – was hardly shocking either. Again, they voted against a very specific and very vile abortion procedure and they did so within the context and framework of Roe – they said that outlawing this procedure wasn’t an undue burden as established in that case. Only Scalia and Thomas wrote opinions reiterating their call to overturn Roe. Neither Roberts nor Alito joined their colleagues.
The pro-life community understands this. It is why the National Right to Life Committee, the oldest and most highly regarded of the pro-life advocacy group said this in response to the decision: “… finally, it is illegal in America to mostly deliver a premature infant before puncturing her skull and removing her brain, which is what a partial-birth abortion is.”
The pro-choice community should understand this too and it should be celebrating the decision – Roe is safe – instead it is behaving as if Roe was overturned. The dreaded conservative Bush court has essentially reaffirmed it. We live in a pro-choice world where a form of infanticide has been banned.
Now the question is whether we are going to chose to love and care for those women who have had abortions, to love and care for women who have unwanted pregnancies, to sexually educate our children, to adopt those kids in America that no one wants to adopt.