Reading The Supreme Court's Decision on Partial Birth Abortion Ban

Last week, Professor Orin Kerr described the Supreme Court's 5-4 upholding of Nebraska's partial birth abortion ban as using "the narrowest ground to uphold the ban...." When I read the decision, what struck me about Justice Kennedy's opinion was how tremendously detailed it was in describing the procedure that was being prohibited--far more detail than really seems necessary for a purely legal question. It is, however, exactly what you would write if you really wanted to impress upon the arm-waving theorists the monstrousness of this:

A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus.... The steps taken to cause dilation differ by physician and gestational age of the fetus. .... A doctor often begins the dilation process by inserting osmotic dilators,such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs,such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix,the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix for two days, while others use dilators for a day or less. ...

After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor,often guided by ultrasound, inserts grasping forceps through the woman’s cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back
through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety,though sometimes removal is completed with fewer passes. Once the fetus has been evacuated,the placenta and any remaining fetal material are suctioned or scraped out of the uterus.

The doctor examines the different parts to ensure the entire fetal body has been removed.... Some doctors,especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus’ body will soften, and its removal will be easier. Other
doctors refrain from injecting chemical agents,believing it adds risk with little or no medical benefit. ...

...

Intact D&E, like regular D&E, begins with dilation of the cervix. Sufficient dilation is essential for the procedure. To achieve intact extraction some doctors thus may attempt to dilate the cervix to a greater degree. This approach has been called “serial” dilation. ... Doctors who attempt at the outset to perform intact D&E may dilate for two full days or use up to 25 osmotic dilators. ... In an intact D&E procedure the doctor extracts the fetus in a way conducive to pulling out its entire body, instead of ripping it apart. One doctor, for example, testified:
“If I know I have good dilation and I reach in and the fetus starts to come out and I think I can accomplish it,the abortion with an intact delivery, then I use my forceps a little bit differently. I don’t close them quite so much, and I just gently draw the tissue out attempting to have an intact delivery, if possible.”
...

Rotating the fetus as it is being pulled decreases the odds of dismemberment. ... A doctor also “may use forceps to grasp a fetal part, pull it down, and re-grasp the fetus at a higher level—sometimes using both his hand and a forceps—to exert traction to retrieve the fetus intact until the head is
lodged in the [cervix]. ... Intact D&E gained public notoriety when, in 1992, Dr. Martin Haskell gave a presentation describing his method of performing the operation. Dilation and Extraction 110 – 111. In the usual intact D&E the fetus’ head lodges in the cervix, and dilation is insufficient to allow it to pass. ... Haskell explained the next step as follows:

“‘At this point,the right-handed surgeon slides the fingers of the left [hand ] along the back of the fetus and “hooks” the shoulders of the fetus with the index and ring fingers (palm down).

“‘While maintaining this tension, lifting the cervix and applying traction to the shoulders with the fingers of the left hand, the surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down,along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger.

“‘[T]he surgeon then forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to
enlarge the opening.

“‘The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies
traction to the fetus, removing it completely from the patient.’” H.R. Rep. No. 108–58, p.3 (2003).

If this starts to make you think of the brainsucking sequence in the terrible movie version of Starship Troopers, then I think Justice Kennedy achieved his goal. Doesn't it make you proud to be an American?