The good news is that Americans remain solid in their opposition to partial-birth abortion. In late October, their elected representatives for the fourth time in the past decade voted to ban that barbaric practice.
The bad news is that the law was immediately blocked by a Nebraska federal judge. Indeed, even before President Bush had signed the legislation, the usual suspects (e.g., NARAL Pro-Choice America) had begun litigation to prevent its implementation. If the past is prologue, more federal district judges will enjoin the new law, and they will be upheld by federal courts of appeal and, ultimately, by the Supreme Court.
Such is the sad history of virtually all efforts to constrain abortion. Although Roe v. Wade is commonly misunderstood to permit abortion only during early pregnancy, in fact abortion is constitutionally protected at all stages, up to and including the moment of delivery. Barely three years after Roe was decided, the Supreme Court struck down Missouri’s legislative ban against saline abortions and in so doing sounded the theme that has ever since dominated the justices’ approach to these cases: In theory, abortion may be restricted during the second and third trimesters; in practice, such restrictions are almost always struck down as an “undue” interference with the right to abortion.
Merely to describe partial-birth abortion is to confirm its heinous enormity. The child is partially delivered; a sharp instrument is inserted into its skull, thereby permitting its contents to be evacuated; the skull is then crushed to permit delivery of the now-dead infant. The late Senator Daniel Patrick Moynihan, a man not otherwise known for the rigor of his opposition to abortion, condemned this procedure as morally indistinguishable from infanticide.
Senator Moynihan’s candor, however, seldom penetrates the aerie of federal judges, who when reviewing statutory prohibitions hide behind the cold sterility of medical terminology. Partial-birth abortion is technically described as “dilatation and extraction,” in contrast to “dilatation and evacuation,” in which the child is killed entirely in utero. The latter is fully protected by Roe, and judges claim that the two procedures cannot be medically distinguished. One judge went so far as to suggest that Roe makes any such distinction legally impossible: Once you concede that an unborn child has no rights independent of its mother’s will, he argued, why should it matter whether the child is dismembered entirely in utero or substantially ex utero?
Although the Supreme Court was loath to present its argument in such blunt terms, it embraced that very logic when it overturned Nebraska’s partial-birth abortion prohibition in Stenberg v. Carhart in 2000. It further dissembled its dirty work by falling back on the last refuge of abortion proponents: Nebraska’s prohibition failed to protect maternal health. Never mind that no competent authority believes partial-birth abortion is ever medically necessary: There might be some imagined hypothetical circumstance in which a pregnant woman could claim that the condemned procedure was her only option. That being so, the Court reasoned, a legislature may not prohibit partial-birth abortion without including a “maternal health” exception.
But as pro-lifers correctly point out, that exception swallows the rule. Maternal health has been defined to include all circumstances in which a woman can get a doctor to agree that an abortion should proceed. The operative rule is, in the words of the old show tune, “Whatever Lola Wants, Lola Gets.”
The newly enacted congressional ban contains no such exception, and for that reason alone is unlikely to survive judicial scrutiny. The nasty truth of the matter is that Roe v. Wade authorizes abortion on demand at all stages of pregnancy. In case after case, various majorities of the Supreme Court have made that clear. To ask them to carve out an exception for a particularly gruesome late-term abortion procedure, no matter how repulsive, threatens the entire edifice on which Roe has been erected. To concede that a particular procedure can be banned is to concede that the unborn child possesses rights that the law is bound to respect. It is to concede, in short, that the pregnant woman’s will is not sovereign.
But that proposition will never be acknowledged by radical feminists. Not now, not ever. Nor will it be acknowledged by a majority of the justices, who are so deeply invested in Roe‘s logic that they are no longer capable of calling barbarism by its proper name.