Speaking our language

Was the U.S. Supreme Court's 5-4 abortion decision on April 18 an early Mother's Day gift to American women (and their unborn children)? When Justice Anthony Kennedy, upholding with four other justices the federal ban on partial-birth abortion in the case, Gonzales v. Carhart, wrote that "respect for human life finds an ultimate expression in the bond of love the mother has for her child," was he writing a Hallmark card or a hallmark decision that will lead to the saving of millions of lives?

Analysts of language and law say Kennedy's opinion suggests that a slim Court majority will now talk plainly about the real relationship between the two human beings operated on during an abortion-a mother and an unborn child. In the 39-page opinion Kennedy, joined by justices John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito, repeatedly referred to a "mother" rather than a "woman," and a "child" rather than a "fetus."

Kennedy also asserted that abortion is a moral decision, not just a medical one. He described abortions in plain language, not medical jargon. He explicitly acknowledged that some women suffer after their abortion. He wrote, "A mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound 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."

Clarke Forsythe of Americans United for Life (AUL) was impressed by "more explicit language than has ever been used before on the importance of informed consent." Virginia State Solicitor General William Thro said, "We're seeing rhetoric and phrasing we've never seen before." Kennedy was far more vivid than he was in Planned Parenthood v. Casey, a 1992 plurality opinion he tri-wrote with Justices Sandra Day O'Connor and David Souter: "In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion."

The language transformation got the attention of University of San Diego professor Anne Hendershott, author of The Politics of Abortion. When Kennedy dissented in Stenberg v. Carhart, a 2000 case that struck down a Nebraska ban on partial-birth abortion, "he didn't give us any confidence that he'd stay on the pro-life side. In Gonzales, there's no shakiness. Kennedy was strong . . . I think he had a change of heart."

Kennedy also wrote that "severe depression and loss of esteem can follow" abortion. That language, which marks the first time the Court has so explicitly recognized women's post-abortion suffering, shocked Justice Ruth Bader Ginsburg, who wrote a dissent attacking Kennedy's use of "an anti-abortion shibboleth" and slammed him for resurrecting "ancient notions about women's place in the family and under the Constitution-ideas that have long since been discredited."

A completely unrestrained right to abortion, she argued, is central to women's "ability to realize their full potential. " But Forsythe noted that Kennedy's reverence for motherhood is "unobjectionable to millions of Americans. I wonder for the future whether Ginsburg's rant will speak only to a tiny number of certain feminists who don't represent American feminism."

The impact of Gonzales in the states may not be known for a year, since most legislatures are winding down for this year or have already closed their sessions. Still, the decision had an immediate effect in several ways:

Tiller, Carhart, and other real-life abortionists operate behind a romantic media façade, said USD Professor Hendershott: "With movies like The Cider House Rules and If These Walls Could Talk, Hollywood has popularized the image of the 'kindly abortionist with the heart of gold.' We have elevated abortionists, and nobody's been questioning what they've really been doing-which is delivering babies and killing them on the way out."

Kennedy's Gonzales opinion changes all that with a return to realism that includes in the majority decision the plain-language testimony of a nurse who watched abortionist Martin Haskell kill a 26 1/2--week baby: "Haskell went in with forceps and grabbed the baby's legs and pulled them down into the birth canal. Then he delivered the baby's body and the arms-everything but the head. The doctor kept the head right inside the uterus. . . . The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction. . . . The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp."

In his own references to partial-birth abortion, Kennedy consistently avoided words like "disarticulate" and "reduce," clinical terms often used by abortionists to obscure the violence of the procedure. Instead, he used terms like "ripped apart"-and in doing so ripped down a curtain of abortionist pretense.

The high court's introduction of new language can prove to be an exception or the beginning of a trend, said Virginia State Solicitor Thro. With the hindsight of 50 years, he said, legal experts see that school segregation began to crumble in cases preceding Brown v. Board of Education. Thro said, "We may look back on this as the moment that the abortion debate changed."