Supreme Court Debates Best Method to Execute a Baby
by Matt Bowman
Posted Nov 10, 2006

Can lawyers debate the butchering of innocent children while keeping a straight face, and a settled stomach? The answer, apparently, is "almost." At least that's what I saw from my center seat at the Supreme Court arguments Wednesday on partial birth abortion. I came away with three observations.

First, the pro-abortion side failed to emphasize stare decisis. In a debate last week on C-SPAN, and in conversations in the hallway before the argument, abortion advocates rather forcefully contended that this case is just like Stenberg v. Carhart, already decided in 2000, and that the only difference is the composition of the court. With this argument they hoped to sway not only Justice Anthony Kennedy but possibly Justice Sam Alito and Chief Justice John Roberts. But the two abortion attorneys did not drive home this point at oral argument. Numerous differences between these cases and the 2000 case were emphasized, most notably by Justice Stephen Breyer.

Second, in contrast, the first five minutes of Solicitor General Paul Clement's second session were masterful. He explained that if the court refuses to recognize the state's interest in separating abortion from infanticide, over and above the vague "health" interest that supposedly necessitates partial birth abortion, then the Casey "compromise" crafted by Kennedy himself would be meaningless, and we would go back to the regime of 1980s cases that Casey overruled wherein practically no state interest in pre-born human life was legitimate. This argument not only targeted Kennedy and echoed his dissent in Stenberg, but it visibly quieted the justice, who thoughtfully leaned back in his seat after having engaged in persistent inquiry for over an hour. the rest