Partial Truths

Are federal abortion restrictions unconstitutional?


"We're finally here debating the most difficult, contentious social issue of our day," Sen. Sam Brownback (R-Kan.) said shortly before he and 63 of his colleagues voted to ban "partial birth" abortions. The issue, according to Brownback: "What is the legal right of the child in utero?"

Yet the ban, which President Bush has promised to sign once it's approved by the House, has nothing to do with that question. It does not recognize the fetus as a person, and it probably will not prevent a single abortion.

Rather, the bill prohibits a particular abortion method, "dilation and extraction" (D&X), that accounts for something like 0.2 percent of abortions, according to survey data from the Alan Guttmacher Institute. The bill's supporters, who have been trying to enact the ban for eight years, insist that women who want to end their pregnancies have other options that are not just equally acceptable but medically preferable.

The bill calls D&X "a gruesome and inhumane procedure" that "blurs the line between abortion and infanticide." In a D&X abortion, which is performed in the fifth month or later, the physician partly removes the fetus from the uterus; pokes a hole in its skull with a sharp implement; sucks out the brain through a tube, thereby collapsing the head; and removes the now-dead fetus.

"Gruesome" is an apt description. But is a D&X really more gruesome than the much more common "dilation and evacuation" (D&E) method, in which the fetus is dismembered inside the uterus and removed piece by piece?

Gruesomeness aside, it is hard to see a moral distinction between the two methods. Either way, the fetus is mutilated and killed, which counts as torture and murder for those who consider the fetus a person.

Politically, however, the campaign against "partial birth" abortions has been a masterstroke, attracting broad public support and putting the abortion rights movement on the defensive. Because a D&X initially resembles a delivery, it vividly drives home the uncomfortable similarity between a fetus and a baby.

"Partial-birth abortions involve the killing of a child that is…mere inches away from becoming a 'person,' " says the bill. The claim is a bit misleading, since fetuses aborted this way would not necessarily have survived outside the womb. Still, the ban invites supporters of "a woman's right to choose" to think seriously about how far that right should extend.

Abortion rights activists, as usual, have dodged the issue, insisting that any limits are intolerable. "This bill goes directly to the heart of a woman's constitutional right to choose," says Kate Michelman, president of the National Abortion Rights Action League.

This is nonsense, and not just because that right was pulled out of thin air by the Supreme Court in Roe v. Wade. The Center for Reproductive Rights claims the ban would cover not only D&Xs but also D&Es, thereby outlawing "the safest and most common pre-viability abortion procedure used after the first trimester."

That argument is unpersuasive once you look at the bill's language. In response to a 2000 Supreme Court decision that found a Nebraska ban on "partial birth" abortion unconstitutionally broad, the bill specifies that the prohibition applies to a physician who "deliberately and intentionally vaginally delivers a living fetus" until either the entire head or "the trunk past the navel" is outside the mother's body.

The ban's opponents are on firmer ground in predicting that the absence of an exception for D&Xs deemed necessary to protect the pregnant woman's health will lead the Supreme Court to overturn the law. The bill's authors tried to get around this objection simply by asserting that "a partial-birth abortion is never necessary to preserve the health of the woman," a claim that makes the exception for D&Xs "necessary to save the life of a mother" rather puzzling.

The real constitutional problem with this legislation—one the Supreme Court will almost certainly overlook—is that Congress does not have the authority to regulate the practice of medicine. The bill ostensibly covers abortions "in or affecting interstate or foreign commerce," which is the authors' lame attempt at a constitutional justification.

That pathetic excuse will persuade only those who believe that Congress may legislate on virtually any subject it chooses—a view that conservatives tend to reject except when it comes to their pet issues. The Supreme Court should not have pre-empted the state-by-state debate about abortion restrictions, and neither should Congress.