Candor and the Court

Responding to conflicting appellate court decisions, the United States Supreme Court is now reviewing the constitutionality of the bans by some states on "partial-birth" abortion. Because of the unusually graphic candor found in those prior decisions, the Supreme Court will confront as never before the violent nature of mid- and late-term abortion.

In the 1973 case of Roe v. Wade, the U.S. Supreme Court decided that states may not defend the prohibition of abortion on the basis of a "theory" that life begins sometime before birth. However, the court explicitly avoided addressing the issue of whether states may prohibit killing a fetus during birth.


Some physicians have been going further than Roe and have been killing during induced delivery. They pull the fetus feet first almost out of the mother’s body and then vacuum up its brain. In response to widespread public revulsion, state and federal legislatures have voted by large majorities to ban such "partial-birth" abortions.

For example, a law passed in Nebraska that is the only measure directly under review by the Supreme Court forbids "an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the child and completing the delivery." In the fall of 1999, this and similar legislation in other states was struck down by Judge Richard Arnold (once mentioned as a likely Clinton nominee to the U.S. Supreme Court), writing for the U.S. Court of Appeals for the Eighth Circuit. Shortly thereafter, however, nearly identical laws were upheld by the Seventh Circuit, based in Chicago, despite a passionate dissent by the court’s chief judge, Richard A. Posner, a leading proponent of what is called the law-and-economics school that analyzes legal questions in economic terms.

Judge Arnold did not claim that what the Nebraska statute protected were lives only in "theory," as Roe had asserted in striking down earlier anti-abortion laws. Indeed, he differs from Roe in pointing out that even in mid-pregnancy abortion takes a life, and often does so during partial delivery. The ban on killing a "living unborn child" during "delivery" must be struck down precisely because, he says, that is exactly what happens in the standard second-trimester abortions that the law now permits.

Judge Arnold gives a graphic description of what really happens in the abortions he defends:

In a D&E procedure, the physician inserts forceps into the uterus, grasps a part of the fetus, commonly an arm or a leg, and draws that part out of the uterus into the vagina. Using the traction created between the mouth of the cervix and the pull of the forceps, the physician dismembers the fetal part which has been brought into the vagina, and removes it from the woman’s body. The rest of the fetus remains in the uterus while dismemberment occurs, and is often still living.... [Even in] a suction-curettage procedure where the fetus does not remain intact, part of the fetus which is still living may be drawn into the vagina before demise occurs.

Ordinary abortions must be considered "partial-birth" procedures, according to Judge Arnold, whenever the fetus dies after the physician "delivers" a part, such as an arm or a leg. But how did the judge know that the dismembered fetus is "often still living"? Because, according to testimony at the trial court that Judge Arnold cited, the aborting physician can in these cases see on his ultrasound monitor that the child’s heart is still beating.

In his dissent from the Seventh Circuit Court, Judge Posner likewise emphasizes the great similarity between partial-birth abortion and other abortions, though he focuses on the identity not of technique but of outcome:

From the standpoint of the fetus, and, I should think, of any rational person, it makes no difference whether, when the skull is crushed, the fetus is entirely within the uterus or its feet are outside the uterus. Yet the position of the feet is the only difference between committing a felony and performing an act that the states concede is constitutionally privileged.... [T]here is no meaningful difference between the forbidden and the privileged practice. No reason of policy or morality that would allow the one would forbid the other.

Judge Posner then goes on to make what he calls "line drawing" between partial birth and complete birth: "Once the baby emerges from the mother’s body, no possible concern for the mother’s life or health justifies killing the baby. But as long as the baby remains within the mother’s body...[there is] a right of abortion."

But by Judge Posner’s own reasoning, this line seems as easily erasable as the one he has just criticized. "From the standpoint of the fetus," it makes no difference whether the killing takes place just outside or just inside the uterus.

In his conclusion, Judge Posner returns to what he calls the "gruesome" quality of all late abortions:

I do not mean to criticize anyone who believes, whether because of religious conviction, nonsectarian moral conviction, or simply a prudential belief that upholding the sacredness of human life whatever the circumstances is necessary to prevent us from sliding into barbarism, that abortion is always wrong and perhaps particularly so in late pregnancy, since all methods of late-term abortion are gruesome.... But what is at stake in these cases is whether the people who feel that way are entitled to coerce a woman who feels differently to behave as they would in her situation.

What will be the political effect of this new candor manifested by both the judges quoted? The U.S. Supreme Court for many years inhibited serious discussion of abortion by using its immense prestige to encourage doubt about what abortion actually does. Ironically, opponents of partial-birth abortion were able to use this doubt to their legislative advantage. Judge Posner in his dissent points out incisively that...

public support for the [partial-birth abortion bans] was [in part] based...on sheer ignorance of the medical realities of late-term abortion. The uninformed thought the [partial-birth] procedure gratuitously cruel, akin to infanticide; they didn’t realize that the only difference between it and the methods of late-term abortion that are conceded all round to be constitutionally privileged is which way the fetus’s feet are pointing.

By remedying this public ignorance with their candor, Judge Arnold and Judge Posner may make partial-birth abortion as acceptable as ordinary abortion. Of course, there may emerge a contrary consistency. A newly informed public could shift the other way, deciding that ordinary mid-pregnancy abortion is as unacceptable as partial-birth abortion. Facing for the first time a candid lower-court description of its handiwork, perhaps even the Supreme Court might begin to change its mind about abortion.

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