COLUMN -- On the necessary tension between moral concerns and individual freedom

Wednesday, May 03, 2007


I'd read quite a bit about the Supreme Court opinion in Gonzales v. Carhart - the "partial-birth" abortion case - but finally sat down last weekend and read for myself Justice Anthony Kennedy's opinion and Justice Ruth Bader-Ginsberg's dissent. Viscerally and philosophically, Kennedy's opinion is pretty upsetting to a hobby columnist who holds abortion to be a negative right - meaning, the federal government has neither the authority to ban abortion nor the authority to support it as it would a positive fundamental right.

Government ought be neutral. Abortion is an individual choice. Better some women misuse their freedom than government is made the fetal police for every pregnant woman. Kennedy's opinion doesn't negate that position, but he does challenge us, regardless of our position on abortion, to question what kind of society would condone a "brutal and inhumane" procedure that ends life "inches from physical birth"? It's a question Ginsberg would rather avoid.

In the Carhart decision, the Supreme Court upheld the constitutionality of the "Partial-Birth Abortion Ban Act of 2003." A 5-4 majority said the law passed by Congress overcomes the court's earlier objections to Nebraska's partial-birth abortion ban (Stenberg v. Carhart - 2000). The 2003 act preserves the ability of a woman to terminate her pregnancy as defined in Roe v. Wade (1973) and adequately maintains the balance between protecting the health of the woman and the life of a fetus struck in Planned Parenthood v. Casey (1992).

In his opinion for the court, Kennedy spares us little grisly detail of abortion procedures, the mildest of which is a clinically cold "how-to" for an "intact dilation and evacuation" ("intact DE") - the "partial-birth" abortion procedure banned by Congress.

"Lifting the cervix and applying traction to the shoulders (of the fetus) ... the surgeon takes a pair of blunt curved Metzenbaum scissors ... carefully advances the tip, curved down, along the spine ... until he feels it contact the base of the skull. ... The surgeon then forces the scissors into the base of the skull ... Having safely entered the skull, he spreads the scissors to enlarge the opening. ... The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. ... He applies traction to the fetus, removing it completely from the patient."

Kennedy justifies the detail to demonstrate the rationale for the act. He quotes from congressional findings: "Implicitly approving such a brutal and inhumane procedure (intact DE) by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life."

Kennedy's expression of the court's opinion, albeit sometimes tortured, reflects a tension that necessarily exists between moral concerns and individual freedom in a free but ordered society. He struggles, as the 2003 act struggles, to balance freedom to choose with a state interest in protecting fetal life. The dynamic of that struggle, the tension between morality and freedom, preserves society from falling into moral anarchy or regressing into totalitarianism.

Ginsberg's written dissent on behalf of the minority in Carhart recognizes no such struggle.

"The notion that the Partial-Birth Abortion Ban Act furthers any legitimate government interest is, quite simply, irrational," she writes. "The court's defense of the statute provides no saving explanation. In candor, the act, and the court's defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by the court - and with increasing comprehension of its centrality to women's lives."

Ginsberg reflects the purely political "reproductive rights" position on abortion. She writes dismissively, "The court admits that 'moral concerns' are at work."

"Admitting" moral concern ought not automatically negate a position, which is what Ginsberg seems to imply. Further, she contends, "non-intact DE could equally be characterized as 'brutal' involving as it does 'tearing a fetus apart' and 'ripping off' its limbs." Her conclusion: No state interest is served by banning one form of abortion and not an "equally gruesome" procedure (some supporters of a total ban on abortion might agree), a position that completely ignores the struggle to strike a balance between moral concerns and individual freedom.

As difficult as it may be to face, abortion is "brutal and inhumane." But in a free society, it is also a choice. There is validity in both contentions. Pursuing a balance that may ultimately be unachievable is, nonetheless, necessary to preserving a free and ordered society - a society where one is free to follow one's conscience, but also a society where law is respected and observed. The latter requires open and honest public discussion dealing with difficult problems in all their difficulty.

Kennedy's opinion in Carhart struggles with the moral and political difficulties of abortion jurisprudence. Ginsberg's dissent, the notion that broad moral concerns are not legitimate government interests, would simply abort public discussion.