The Nine [74]
The grisly details had a galvanizing effect both inside and outside the movement. Abortion opponents saw the practice as barbaric and indefensible, nothing less than infanticide. In state legislatures and in Congress, where Republicans now presided, prolife politicians moved quickly to legislate a ban. Supporters of abortion rights were thrown on the defensive. They pointed out that such abortions were extremely rare, amounting to less than one percent of the more than one million abortions performed each year in the United States. And the vast majority of these abortions were done on women who suffered major medical complications or whose fetuses were horribly defective. Still, the images conveyed by the procedure proved to be politically compelling. The Republican Congress passed bans twice in the 1990s, and Clinton vetoed them each time because neither bill had an exception to protect the health of the mother. Abortion opponents had greater success at the state level. Throughout the decade, one state after another passed laws prohibiting the practice. Inevitably, notwithstanding the justices’ reluctance to return to the divisive subject, the Supreme Court would have to decide if these laws could stand.
The case came before the justices on April 25, 2000, the second-to-last day of oral arguments for the term that began the previous October. Pushing through a decision of this magnitude before the summer recess at the end of June would clearly be a formidable challenge, given the complexity and contentiousness of the issue. The courtroom was tense when Don Stenberg, the attorney general of Nebraska, stood to defend his state’s law, which had been declared unconstitutional by the Court of Appeals for the Eighth Circuit in Stenberg v. Carhart. “The issue here today is whether a state may prohibit a little-used form of abortion that borders on infanticide when safe, alternative forms of abortion remain available to women who seek abortions,” he said.
Scalia always asked the most questions in oral argument, but the issue in Stenberg moved him to a level of hostile garrulousness unprecedented even in his career. He dominated the argument to an almost embarrassing degree. “General Stenberg,” he asked at one point, “I took it that what you meant when you said it bordered on infanticide had nothing to do with the viability of the fetus, but that the procedure looks more like infanticide when the child is killed outside the womb than when it is killed inside the womb, and therefore it can coarsen public perception to other forms of killing fetuses or children outside the womb. Is that not what the legislature was concerned about?” (It was, said Stenberg.) To the lawyer for the Nebraska obstetrician who brought the case, Scalia offered this soliloquy: “Neither Roe nor Casey are written in the Constitution. They may not have mentioned all of the appropriate interests that may be taken into account. Why is it not an appropriate interest that the state is worried about rendering society callous to infanticide? There were very many highly civilized societies, including the ancient Greeks, who permitted infanticide, who said that the right of parents included the right not to be burdened with a child they didn’t want, especially a