Life Watch: Out of This Nettle, Danger

Sometime in the fall, before the elections in November, the pro-life leadership in the Congress will bring forth again the bill on partial birth abortions. The timing would be designed to point up again the willingness of President Clinton and a large segment of his party to defend these grisly procedures. But the concentration will be on the Senate, to see if support for the bill could be raised to a level high enough to overcome a presidential veto. That prospect seems, at the moment, doubtful, but there are other surprises in store: The opponents will now be armed with a series of decisions in the lower federal courts, striking down rather similar bills in the States on partial birth abortions. Mr. Clinton, with his earlier vetoes, bought time, and over the past several months federal judges have used that time to do what they have done since the early ’70s: They have flexed their arts, used every device at their disposal, to tie up any bill that places even a token restraint on abortion.

With the bills on partial birth abortions, the judges have now placed on the public record layers of argument, to show why even these modest measures, with their limited focus, would be unconstitutional. When the pro-life leadership returns to this business in the fall, it may discover that the ground has been preempted. Their opponents can argue that the bill is now, on its face, unconstitutional. They could report, plausibly, that the bill is virtually certain to be struck down when it is challenged in any of these same federal courts, by the same litigants, the same collection of “abortion providers” who challenged these statutes in the states. After all, the partisans of abortion had “shopped” around for federal judges sympathetic to their cause, and those judges could be found throughout the landscape. And so, over the last several months, bills on partial birth abortion have been struck down in Ohio, Michigan, Illinois, Arizona, and Nebraska. In Alabama, Judge Thompson bounced the matter back to the Alabama Supreme Court to “clarify” all of the issues raised about the “vagueness” of the bill, along with a list of other, dubious arguments that have been leveled against this legislation. The maneuver is but a thin charade, since everyone knows that the judge will strike the bill down on any of the pretexts or clichés that he has listed. The charade was so clear, in fact, that the Alabama Supreme Court would not take the bait. By a vote of 5-4 the judges declined to expound the meaning of the statute. According to one lawyer tracking the case, the four judges in the minority were willing to defend the statute and show the clarity of its terms. The other five judges apparently decided that it would have no effect on the outcome, and do them no particular good in Alabama, if they expounded on the public record their support for abortion.

The charge of “vagueness” has run through all of the cases, as serviceable as it is implausible. In Ohio, the Court of Appeals for the 6th Circuit found something too hazy, apparently, in the definition of the “D &X” procedure (dilation and extraction), the procedure that marks the partial birth abortion:

The termination of a human pregnancy by purposely inserting a suction device into the skull of a fetus to remove the brain. ‘Dilation and extraction’ procedure does not include the suction curettage procedure of abortion or the suction aspiration procedure of abortion.

This language was evidently meant to concentrate the bill on the kind of abortion that was performed, not by cutting up the child, but by delivering the child in one piece, as it were, after collapsing the head. Later on, in the opinion, Judge Kennedy described the D&X procedure by drawing on the accounts offered by doctors, including the doctors who performed it. At the end of her description, the judge incorporated these familiar lines:

Once the scissors have entered the skull, the physician spreads them to enlarge the opening. Finally, the physician removes the scissors, inserts a suction catheter into the hole, and removes the skull contents. The head will then compress, enabling the physician to remove the fetus completely from the woman.

Now, where is the vagueness in any of this? Could any observer, coming new to the statute, have the least confusion as to what it is, exactly, that the law means to forbid? Is there any doubt as to how the drafters had marked off the lines of definition for the sake of making clear just which abortions—objectionable as they may be—the statute does not intend to reach? Judge Danny Boggs remarked in dissent that the “plaintiffs are attempting to create ambiguity where there is none. Such is the genius of a vagueness challenge because, in the extreme, words can always be said to be ambiguous.” Did that fellow say he would “shoot the president for extending the draft”? He meant he would photograph the president, and his concern was with the wind, the draft in the hall.

But of course the judges did not exactly mean that the statute was unintelligible. They misspoke in part themselves, for what they were saying, rather, was that the statute still could not establish a clear barrier between the abortions that were permitted and the abortions that were forbidden. As Judge Kennedy pleaded, the D&X abortion might not always be so easy to distinguish from the D&E (dilation and evacuation) abortion, where the child (or rather “fetus”) is being cut up. For in that procedure, too, the surgeon may have to use clamps to compress the head. And in some cases, as she pointed out, “some physicians compress the head by using suction to remove the intracranial contents” (i.e., brains).

The problem of “vagueness,” then, is not in the language, or the clarity of the statute. It lies rather in the fact that there is no clear way of distinguishing the killing done on the child near birth from the killing routinely done in other, even grislier abortions. The challengers come in to plead that they are “chilled,” inhibited in their freedom, by the prospect that they could be prosecuted under the statute when they perform a D&E abortion in the second trimester. No one, of course, seriously believes that these people stand in danger of prosecution under this kind of statute. As the framers of the bill in Arizona explained, the purpose of the bill was to “erect a firm barrier against infanticide.” But the remarkable thing now is that the judges are explaining, in language suitably muffled, that this is exactly what we cannot any longer do. In Illinois, federal Judge Kocoras noted the predicament of the physician, who “may ‘deliver’ or ‘partially deliver’ an intact, living fetus or a part of a ‘living’ fetus that continues to have a heart-beat.”

The rest of us, looking on, might ask, Why are you killing an infant with a beating heart? Or why would you assume that this child, emerging with a beating heart, should not summon the efforts of the staff to preserve her life? But the minds of the judges have been furnished now by legal science, and what their jurisprudence tells them is that the things plainly before our eyes do not count: There is no child with a beating heart; the existence of that child, in that condition, is overridden or trumped, by the right of a woman to “terminate” her pregnancy.

The bills on partial birth abortion seemed to reflect the strategy of the “modest, first step,” and the readers of these pages will know that I have been identified for nearly ten years now with a first step even more modest: that we begin simply by protecting the child who survived the abortion. Mr. Clinton looks at partial birth abortions, and he sees only the pregnant woman, weighing a variety of risks and harms. But the harms suffered by that other being, the being whose head is being crushed and the brains sucked out—the injuries done to that being simply do not register. And they do not register, even in the bill on partial birth abortions, because the bill had not filled in that elementary point: that the child does indeed count in the eyes of the law, that she is an entity, a bearer of rights, and her claim to the protection of the law should not turn on the question of whether anyone happens to want her. As some of us argued, if we could establish those premises in the law, we could eventually unravel the “right to abortion.”

As it turned out, the pro-life leadership, especially at National Right to Life, made the right choice in beginning with partial birth abortions. There were a couple thousand of these procedures performed—there was a record of real cases—and the examples were dramatic enough to draw the attention of the public. And once drawn, the public became instructed. But that strategy cannot produce, right now, a legislative result, and lest we forget, one of the purposes behind this strategy was to show that Congress could indeed legislate on this subject. To persist in this course now, as though nothing had changed, would be to engage in a species of sleep-walking.

And yet, there is another path available to us, which springs from our original strategy. Part of the purpose in that strategy was to compel the other side to defend abortion on the terrain of the hardest cases: abortions performed at the point of birth. Now the judges come to that edge, and they tell us, with a remarkable explicitness, that we cannot “erect a firm barrier against infanticide”: not if it would inhibit, in any degree, the freedom to choose an abortion anywhere else in the course of a pregnancy. We have brought the judges to the point at which they are making explicit what has been contained in the logic of abortion all along. In a certain sense, then, they have played into our strategy, and if we cannot be agile enough, or quick witted enough, to respond, then the pro-life leadership ought to take a refresher course in tactics.

In the first countering move, hearings can be held to put the spotlight on the work of the judges and broadcast their resistance to any barrier against infanticide. And then, in the second move, we could simply bring forth an anti-infanticide bill, drawing on the same majorities, in both parties, that passed the bill on partial birth abortions. A draft of this new bill, by the way, is already in the files. Several accomplished pro-life lawyers helped to shape it years ago; it can be sprung and reshaped in a matter of hours. “Out of this nettle, danger, we pluck this flower, safety” (Hotspur, I Henry IV). In the presence of a disaster closing in on us, we may recognize that our original strategy worked, that we have the opportunity to pull off the simplest of maneuvers. We could go around our adversaries, and plant in the law the simplest premise possible. But as that modest achievement plays out its logic in the years ahead, it could produce the most astounding effects.


Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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