Mother's Day has come a month early to the U.S. Supreme Court. In mid-April, the court upheld Congress's prohibition of partial-birth abortion. A practice bordering, if not mimicking, infanticide has been put largely off limits.
Partial-birth abortion involves the near-completed delivery of an intact child, only to then intentionally puncture the child's skull for the purpose of inflicting death by suctioning out the brain.
When the state of Nebraska sought to ban this gruesome procedure some years ago, the Supreme Court found the state's ban too vague to be enforceable and lacking a health exception.
Congress tightened up the language and supplied an exception for life, but not health. Responsible medical testimony found the procedure to be "never medically necessary" and fraught with its own health risks.
In its latest ruling, the court conceded that the need for a health exception was contested. Nevertheless, in spite of that medical uncertainty, the court found there was no basis to invalidate the law in its entirety. Rather, the presumption should be in favor of the law's enforcement, leaving the door ajar just a bit should an unusually rare medical condition be specifically demonstrated to medically require the procedure.
In general, said the court, the federal restriction was perfectly valid since "the government has a legitimate and substantial interest in preserving and promoting fetal life."
While only vindicating a ban of one notably ugly procedure, the ruling is important for the insight it supplies about the new court led by Chief Justice John Roberts. Especially relevant given the advent of Mother's Day is the extent to which the court chose to highlight the profound social injury that abortion represents to motherhood.
Writing for the court majority, which included Roberts and Justices Samuel Alito, Clarence Thomas and Antonin Scalia, Justice Anthony Kennedy affirmed that "respect for human life finds [its] ultimate expression in the bond of love the mother has for her child."
Acknowledging abortion to be a painful and difficult moral decision, the court pronounced that it would be "self-evident" for any mother to regret her choice to abort. The majority speculated that this pain would be far greater if the law had permitted a doctor to engage in the shocking killing of a child partially born.
Dissenting, Justice Ruth Bader Ginsburg understood the implications of motherhood for the case entirely differently. Calling even the limitation of a single, heinous abortion procedure "alarming," she and her fellow dissenters (Justices John Paul Stevens, Stephen Breyer and David Hackett Souter), characterized the abortion right as essential to a woman's autonomy and her "enjoyment of equal citizenship."
Why a woman's equality depends upon the option of destroying the life of her child is unexplained.
As a one-time law dean, it was my privilege to meet Ginsburg from time to time. In person, she is a kind and intelligent woman. Her thoughtfulness toward my law students --- men and women alike --- was always generous. What is baffling in light of these personal meetings is the stridency of her dissent and her sarcastic denigration of Congress's effort to protect life by likening it to the most repressive gender laws.
Indeed, Ginsburg comes very close to equating the protection of unborn children to abusive behavior toward women. Seemingly to refute the "bond of love" between mother and child noted by the majority, Ginsburg emphasizes unwanted pregnancies and the daily incidents of sexual assault.
This is non sequitur. Proscribing an inhuman abortion practice does not re-impose "discredited notions about women's place in the family and under the constitution."
Ginsburg is right, of course, that at one time --- a half-century or more ago --- the law rather exclusively highlighted "the destiny and mission of women to fulfill the noble and benign offices of wife and mother."
America can and should still celebrate these as noble callings. Nothing about protecting unborn life, however, requires that they be the only vocational choices of a woman.
The Supreme Court's Mother's Day gift? Rejection of the pernicious idea that women can only achieve by standing upon the graves of their unborn children. Douglas Kmiec is professor of Constitutional Law and Caruso Family Chair in Constitutional Law at Pepperdine University's School of Law in Malibu.
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