Alito's Abortion Ambition

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Just months after replacing Sandra Day O'Connor on the U.S. Supreme Court, it looks like Justice Samuel L. Alito is about to begin making a career-long ambition come true.

As a Reagan administration lawyer in 1985, Alito made plain his hope that the Supreme Court would one day overturn Roe v. Wade, the 1973 landmark case that established a woman's right to an abortion. But he also argued against an all-out assault on the ruling, fearing such an effort would fail. Instead, Alito embraced a policy of gradually chipping away at the decision — or as he put it, “mitigating its effects.”

It's no wonder then that on November 8, just six years after the Supreme Court's 5-4 decision to strike down a Nebraska law which criminalized late-term abortion, the Court has agreed to revisit the issue — this time with a federal law called the “Partial Birth Abortion Act of 2003.” The Nebraska law was struck down because it failed to provide exceptions for a woman's health; the federal law contains the same omission. So what's the difference? This time, Justice Alito will cast the deciding vote.

The abortion method in question involves dilating a woman's cervix to allow most of the fetus to emerge into the vagina intact, rather than dismembering the fetus in the uterus by using forceps and other instruments. A doctor then suctions out the fetus' brain to collapse the head and allow delivery.

Granted, the method is horrible to contemplate (and thankfully, it is rarely done), but for women like “Kim,” continued availability of the procedure is a necessary option.

In February 2002, during her 17th week of pregnancy, Kim and her husband were devastated to learn that the fetus she was carrying had a chromosomal abnormality called Trisomy 13. In addition to numerous deformities, a sonogram revealed that the brain, heart, and kidneys could not support life outside the womb. Faced with that heart-wrenching reality, Kim said, “I knew that I would not be able to carry the fetus to term; to have every kick and movement remind me that we would not have a child at the end of the pregnancy and then to see the baby die a painful death, if he even made it to term.”

Given her medical history, Kim's doctors advised her that the “intact” procedure would be the safest medically and would also leave her with a better chance of getting pregnant in the future.

Kim's mental health was also at risk.

“It would have broken me emotionally and spiritually to be induced and go through the delivery process. Being surrounded by mothers with their new babies and not having my own to hold, love, and take home would have been that much more emotionally traumatizing.”

“Catherine” and her husband had a similar experience. Catherine learned during the 14th week of pregnancy that their child had Trisomy 13 and that the pregnancy was threatening her health. “If I tried to carry to term and suffered a late term fetal death or miscarriage, there was a serious chance of complications for me,” she said. “I might hemorrhage, I might get an infection, the trisomy might interfere with the development of the placenta and leave me deathly ill.”

Catherine's doctor told her, in “very plain language,” that if she carried the pregnancy to term, there was a very high chance that she would never bear another child. “There was no good choice,” says Catherine. “There was no hope of a healthy child. I could have a (late-term) abortion, or I could see how my luck went carrying this doomed pregnancy to term and risk my life and future fertility, and I elected to have an abortion.”

Proponents of the ban emphasize that Congress wrote it in consultation with medical professionals who testified that a health exception was unnecessary, since alternative (though frankly, no less gruesome) methods of second-trimester abortions would remain legal. In contrast, the American College of Obstetricians and Gynecologists has reported that the method in question is increasingly viewed as the safest procedure available for second-trimester pregnancy. This is, in part, because less of the fetus is in the womb where a woman's reproductive tissues can be cut by sharp instruments, heightening the risk of hemorrhaging and future infertility.

Meanwhile, the forces aligned against abortion rights have not been shy about their motives for backing a late-term abortion ban. In 1996, John Jakubczyk, the general counsel of Arizona Right to Life, stated, “That procedure isn't what we care most about. Our goal is to stop the killing of unborn children at any stage of development.” Randall Terry, founder of Operation Rescue, put it even more bluntly, saying the “partial birth abortion ban is a political scam, but a public relations gold mine.”

The bottom line is there is nothing pretty about late-term abortion, but that doesn't give Justice Alito, or any other government entity, the right to play politics with women's health. No expectant mother, in the absence of the most nightmarish diagnosis, ever wants an “intact” abortion. What they want — and what they deserve under the Constitution — is unfettered access to the most appropriate medical care.

Men would expect nothing less. Why should we?

Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently a professor of law at the New York Law School. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. To read the rest of Lis's bio, click here.