Late Edition: A Right to a Dead Child?

In Stenberg v. Carhart, a 5 to 4 Supreme Court majority brought us to the brink of infanticide. It is unfashionable to describe the Court’s action in those terms, but the genteel circumlocution with which such matters are these days discussed cannot disguise the likely consequence of its logic. Lest there be any doubt on this score, one need only turn to Planned Parenthood v. Farmer, a Third Circuit case handed down in late July, overturning New Jersey’s version of the Nebraska ban.

Although Farmer was argued and drafted before Stenberg, the Third Circuit’s reasoning closely tracks that of the Supreme Court: While the legislature purported to prohibit only one particularly gruesome form of late- term abortion, the statute could be interpreted to ban other legally protected methods, thus creating an “undue burden” on the woman’s right to abortion. Given that the New Jersey law had been cast in terms similar to those adopted by Nebraska, this result was hardly surprising. But Third Circuit Judge Maryanne Barry went out of her way to castigate the defenders of the New Jersey statute. The attempt to equate partial-birth abortion with infanticide, she said, “is based on semantic machinations, irrational line-drawing, and an obvious attempt to inflame public opinion.”

Contrast this characterization with the description of partial-birth abortion offered by Justice Kennedy in his dissenting opinion in Stenberg:

The fetus’ arms and legs are delivered outside the uterus while the fetus is alive; wit-nesses to the procedure report seeing the body of the fetus moving outside the woman’s body…. At this point, the abortion procedure has the appearance of a live birth. As stated by one group of physicians, “as the physician manually performs breech extraction of the body of a live fetus, excepting the head, she continues in the apparent role of an obstetrician delivering a child….” With only the head of the fetus remaining in utero, the abortionist tears open the skull…. Witnesses report the portion of the fetus outside the woman reacts to the skull penetration…. The abortionist then inserts a suction tube and vacuums out the developing brain and other matter found within the skull.

 

So much for Barry’s “semantic distinctions” and “irrational line-drawing.” And if Kennedy’s description has the effect of “inflaming” public opinion, so much the better. The public should be inflamed by such a barbarous practice, even if Barry is not.

But Barry was not content to vent her spleen against opponents of partial-birth abortion. She continued: “Positing an ‘unborn’ versus ‘partially born’ distinction, the Legislature would have us accept, and the public believe, that during a ‘partial-birth abortion’ the fetus is in the process of being ‘born’ at the time of its demise. It is not. A woman seeking an abortion is plainly not seeking to give birth.”

Here we reach an ominous turn, one that involves a mischievous semantic distortion of its own. Barry is saying that once a woman chooses to abort, the very idea of giving birth or of being born no longer applies. The implication of this logic, although not spelled out, is that once a child is marked for destruction, the woman’s intention governs all that follows. In regulating abortion, the state may consider neither the child’s physical disposition nor the manner used to effect his or her death. The woman’s will is sovereign: the right to an abortion necessarily includes the right to a dead child.

But what is to prevent Barry’s logic from applying to a fully delivered child? Well, it will be said, that is different. But why? The Supreme Court has declared that the “right to choose” prevails whether the child is wholly in utero or partially delivered. Barry says the same thing, adding that a woman “seeking an abortion is plainly not seeking to give birth.” Both have made clear that in the abortion context the child has no independent status the law is bound to respect.

Put the two cases together, apply the combined rule to a fully delivered child lying on the table, and you have the legal rationale for legitimating infanticide. Whether five justices of the Supreme Court or three judges of the Third Circuit intend this result is beside the point. The question to be asked is whether there is anything in their abortion jurisprudence to prevent it from happening.

Michael M. Uhlmann

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Michael Martin Uhlmann (1939-2019) served as professor of government in the department of politics and policy at Claremont Graduate University and Claremont McKenna College. Prior to teaching at Claremont, Dr. Uhlmann was a senior fellow at the Ethics and Public Policy Center, Vice President for Public Policy Research at the Bradley Foundation in Milwaukee, Wisconsin, and taught at the George Mason University Law School.

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