After a generally fair story (apart from the usual liberal media labeling tics) yesterday, Supreme Court reporter (and adamant, public abortion supporter ) Linda Greenhouse lets some of her own opinion peek through in her "news analysis" of the Supreme Court's 5-4 decision to uphold the federal Partial-Birth Abortion Act, "Adjudging a Moral Harm To Women From Abortions ."
Greenhouse began by sketching out the landscape with unusual starkness, especially given the usual vague niceties of the mainstream media: "That abortion is bad for fetuses is a statement of the obvious. That it is bad for women, too, is a contested premise that nonetheless got five votes at the Supreme Court on Wednesday."
But not totally stark: Can you imagine the feminist outcry at the Times if had used the word "babies" instead of "fetuses"? Which is no doubt why the Times never will.
Greenhouse summarized Kennedy's majority opinion in condescending terms: "But never until Wednesday had the court held that an abortion procedure could be prohibited because the procedure itself, not the pregnancy, threatened a woman's health - mental health, in this case, and moral health as well. In his majority opinion, Justice Anthony M. Kennedy suggested that a pregnant woman who chooses abortion falls away from true womanhood."
Otherwise, Greenhouse's brief for the dissent contained no dissent from the view that the decision was wrong. Her other sources favored scrapping the federal ban on partial-birth abortion.
"The shift in the court's discourse was 'enormous,' said Prof. Reva B. Siegel of Yale Law School. It was, she said, 'beyond Alice in Wonderland: criminalize abortion to protect women.'....On his blog, Balkinization, Prof. Jack M. Balkin of Yale Law School defined the message behind what he called the 'new paternalism': 'Either a woman is crazy when she undergoes an abortion, or she will become crazy later on.'"
In her stirring conclusion, Greenhouse showed a discreet yearning for the old Anthony Kennedy she used to know, the one who fought for the freedom to abort "fetuses."
"Justice Ruth Bader Ginsburg's dissenting opinion contained a quotation: 'Our obligation is to define the liberty of all, not to mandate our own moral code.' The line had appeared twice before in Supreme Court opinions, most recently four years ago, in Justice Kennedy's majority opinion that struck down the Texas sodomy law in Lawrence v. Texas and overturned the 1986 anti-gay-rights precedent, Bowers v. Hardwick.
"It appeared for the first time 11 years before that, in Planned Parenthood v. Casey, the decision that reaffirmed the right to abortion with an unusual joint opinion; the line is in the portion of the opinion usually attributed to Justice Kennedy.
"The question that combatants on both sides of the abortion wars are now asking themselves is, which is the Anthony Kennedy for the Roberts court: the author of that sentiment, or the one who, on Wednesday, left a familiar shore, embarking with a narrow majority on a journey to an uncertain destination."
Speaking of narrow decisions, the famous 1992 decision, Planned Parenthood vs. Casey, cited by Greenhouse, which preserved the controversial abortion decision Roe v. Wade, was an even more narrow and bitterly decided case: A 5-4 divided opinion, meaning none of the Justices' opinions was joined by a majority of justices.