So What’s the Big Deal About Partial Birth Abortion?

Outside the circles of pro-abortion extremism, almost all Americans are revulsed by partial-birth abortion. State after state has enacted bans against a gruesome procedure that kills babies within seconds and inches of their being unquestionably born. Just as regularly, federal courts have overruled the bans, claiming that they transgress against the abortion license guaranteed by Roe v. Wade. Now the question of partial-birth abortion is before the Supreme Court, and a great deal will turn on its ruling.

Meanwhile, however, Richard Stith, Professor of Law at Valparaiso University, notes that something very curious is happening. Partial-birth abortion is forcing a new judicial candor about other abortions as well, at least from the midterm of pregnancy. Sensible people may disagree about whether this new candor is promising or ominous.

Remember that Roe v. Wade decided that states cannot prohibit abortion based on a “theory” that life begins before birth. Today the pretense is being dropped that that is just a theory. Here, for instance, is Judge Richard Arnold of the Eighth Circuit Court of Appeals explaining why states cannot ban the killing of a “living unborn child” while it is in the process of being delivered. His language is graphic:

“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.”

In other words,Judge Arnold says, such ordinary abortions must also be considered “partial-birth” abortions, since the fact is that death is the result after the abortionist “delivers” part or parts of the baby. Judge Richard Posner of the Seventh Circuit makes essentially the same point as Judge Arnold, although he focuses not on the sameness of technique but on the sameness of outcome in partial-birth abortions and other abortions:

“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 does not deny that partial-birth abortion is “gruesome.” His point is that other abortions, certainly from the second trimester on, are also gruesome. Posner even indicates some sympathy for those who want to prohibit those other 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.”

So where are we then? Prof. Stith writes, “The United States Supreme Court for many years inhibited serious discussion of abortion by using its immense prestige to encourage doubt about what abortion actually does. Perhaps surprisingly, opponents of partial-birth abortion were able to use this doubt to their legislative advantage.” But Judge Posner incisively points out 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’ feet are pointing.”

The publicity about, and consequent opposition to, partial-birth abortion rendered a great service in educating the public on how extreme is the abortion license created by Roe v. Wade. On the other hand, the new judicial candor about what happens in “ordinary” abortions may lead some to the conclusion that partial-birth abortion is not qualitatively different and therefore, however regrettable, must be accepted. The more hopeful possibility, of course, is that a better-informed public will conclude that the killing of babies is a monstrous evil and must be outlawed. Put positively, the conclusion should be that we must work toward the goal of the pro-life movement: every child, born and unborn, protected in law and welcomed in life.