Civil Liberties

The Partial-Birth Abortion Challenge

What the Supreme Court hath wrought


Most Supreme Court decisions can be read over breakfast, at least after your first cup of coffee, but the one last week upholding a federal ban on partial-birth abortion is not one of them. This procedure is one of those topics, like war and sausage, in which ignorance is bliss. But five justices refused to be accomplices in shielding the public from the truth.

The court cited one nurse's account of this procedure. The doctor, she said, "delivered the baby's body and arms—everything but the head." At that point, she said, "The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out… The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out."

The striking fact about the debate here is not that some people are appalled and revolted by what is done in these instances, but that some people are not. They don't flinch from the violence visited on well-developed fetuses in the name of reproductive freedom. Any abortion, in their eyes, is a justifiable abortion.

So they were furious last week when the Supreme Court said that while it was prepared to permit a vast array of abortions, it was not obligated to permit these. It upheld a law passed by Congress in 2003 making it illegal for doctors to use this method to destroy a fetus.

The court's critics portray the decision as a brazen attack on the health and safety of women. Justice Ruth Bader Ginsburg, in her dissent, said it would "put a woman's health at greater risk." The National Abortion Federation issued a statement calling the ban "harmful to women's health."

But Fred Frigoletto, past president of the American College of Obstetricians and Gynecologists, which opposed the law, suggested that's not likely. "From the point of view of the patient," he told National Public Radio, "we are not going to be significantly encumbered, because of the other alternatives." The American Medical Association has said, "There does not appear to be any identified situation in which [it] is the only appropriate procedure."

Nor is there much evidence to suggest it is used to protect the physical well-being of patients. Early in the debate, Ron Fitzsimmons, head of the National Coalition of Abortion Providers, told The New York Times that, as the Times put it, "in the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along." A report by the Kansas Health Department found that 182 partial-birth abortions were performed in the state in 1999—and that none was done to protect the physical health of the mother.

Why didn't the ban include an exception for the health of the woman? Because the Supreme Court has said the exception must include not only physical risks "but all factors—physical, emotional, psychological, familial, and the woman's age—relevant to [her] well-being." The exception cancels the rule.

If abortion-rights groups truly wanted to preserve this option in cases of significant risk to the mother, they could push for a narrow health exception for these instances. But they want to preserve partial-birth abortion for all instances, because any limit "on the right to choose" is intolerable.

Ginsburg can't for the life of her understand why anyone cares which type of abortion is used in these instances. "The law saves not a single fetus from destruction," she noted.

She's right. So why forbid one method of destroying fetuses while allowing others? Because in this method, as the AMA has explained, the fetus "is killed outside the womb."

If the fetus were entirely outside the womb, of course, the term for the procedure would not be "abortion" but "infanticide." And you could make the same argument for infanticide that abortion rights supporters make for this method: If the outcome is a dead fetus, what's the difference?

The real challenge for abortion-rights advocates is not that this law will prevent abortions or impair the health of women getting them. It's that it treats the fetus as more than a disposable inconvenience—as a living entity entitled to a measure of respect and protection. Once you take that step, there is no telling where it may lead.


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