The Magazine

The Courts and Abortion

If the Supreme Court overturns Nebraska's ban on partial-birth abortion, the rationale could be even scarier than the decision

Jun 12, 2000, Vol. 5, No. 37 • By RICHARD W. GARNETT
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After an eight-year hiatus from the abortion controversy, the Supreme Court will decide later this month in Stenberg v. Carhart whether Nebraska may outlaw partial-birth abortion, a practice that even so resolute an abortion-rights supporter as Sen. Daniel Patrick Moynihan says cannot be distinguished meaningfully from infanticide. As is often true in high-profile cases these days, the outcome in Carhart will depend on the inclinations, reactions, instincts, and emotions of Justices Anthony Kennedy and Sandra Day O'Connor. The consensus among Court-watchers, based on these justices' questions during the April 25 oral argument, is that things look bleak for the Nebraska ban. George Washington University law professor Jonathan Turley pronounced that the smart money "would be against the law surviving Supreme Court review." And it's a good thing too, NOW's Patricia Ireland insisted, because banning partial-birth abortion is just a "strategy by antiabortion-rights people to end all abortions."


Pro-choice scare tactics notwithstanding, the Court's decision in Carhart -- even if Nebraska's ban is upheld -- will certainly leave the basic right to abortion untouched. Roe v. Wade is safe. Still, the case is crucial to pro-lifers' efforts to stave off what Pope John Paul II has called "the culture of death." After all, pro-choice arguments generally assume that the lives of unborn children must yield to women's autonomy precisely because they are "unborn." Abortion-rights advocates do concede -- for now, at least -- that babies enjoy full legal protection once these children are "born." The state of Nebraska, its attorney general Donald Stenberg told the justices, has drawn "a bright line between infanticide and abortion." The question for the Court is whether states may draw such lines -- and, more precisely, whether Nebraska's line is "bright" enough -- to prevent us from sliding into the barbarism of legal infanticide.


The last time the Court squarely confronted abortion rights, in Planned Parenthood v. Casey (1992), it retooled but refused to repudiate the right it had created two decades earlier in Roe v. Wade. Writing for a narrow majority, Justices Kennedy, O'Connor, and Souter elevated pop existentialism and talk-show narcissism to constitutional principle, insisting in the now-famous "mystery passage" that "the heart of [the] liberty" protected by the Fourteenth Amendment from state interference is "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Evidently wearied by abortion opponents' dogged persistence, these justices tried to scold them into silence as they called on "the contending sides of [the] national controversy to end their national division by accepting a common mandate rooted in the Constitution." The Court locuta est; causa finita est.


The Court's admonitions notwithstanding, the "contending sides" were soon at it again, this time over partial-birth abortion -- also known as "intact dilation and extraction," or "D&X." Martin Haskell, a veteran of over 1,000 such abortions, described the procedure at an abortionists' conference in 1992:


A woman who is pregnant between the fifth and sixth month has the opening of her womb dilated over two to three days. Instruments are then used to reach into the uterus and grab the feet of the fetus. . . . The fetus is delivered until only the head remains inside the womb. The operator then uses a knife to make an opening in the base of the skull and a suction tube is inserted into the skull and the brain is sucked out. The skull then collapses, killing the fetus and allowing for delivery of the fetus in one piece.


It gets worse. Brenda Pratt Shafer, a former abortionists' nurse, has elaborated:


The doctor delivered the baby's body and arms, everything but his little head. The baby's body was moving. His little fingers were clasping together. He was kicking his feet. The doctor took a pair of scissors and inserted them into the back of the baby's head, and the baby's arms jerked out in a flinch, a startle reaction, like a baby does when he thinks that he might fall. Then the doctor opened the scissors up. Then he stuck the high-powered suction tube into the hole and sucked the baby's brains out. Now the baby was completely limp. I never went back to the clinic. But I am still haunted by the face of that little boy. It was the most perfect, angelic face I have ever seen.


The thought of doctors stabbing a late-term baby in the head and sucking its brains out, even as the child kicked and flinched, was almost universally horrifying. Repulsed by Haskell's ghoulish craft, generous but not veto-proof bipartisan majorities in Congress twice have attempted to outlaw it. President Clinton has twice vetoed the bans. Thirty states have enacted their own prohibitions, although more than half of these bans have been blocked or invalidated in federal courts. Two federal appeals courts reached different results in state cases, setting up Carhart for the Supreme Court.


Under Nebraska law, an abortionist performs a "partial-birth abortion" when he "deliberately and intentionally" delivers vaginally a "living unborn child" or "substantial portion thereof" before killing the child and completing the delivery. The legal issue in Carhart is relatively straight-forward: Is "partial-birth abortion," as defined, so much like the more common "dilation and evacuation," or "D&E," abortion method that a ban on the former would effectively outlaw the latter, thereby imposing an "undue burden" on the right to abortion? The 8th U.S. Circuit Court of Appeals, in an opinion by one of the nation's most respected federal judges, said "yes," and Justice O'Connor's questions suggest that she agrees.


At first, the argument offered up by LeRoy Carhart, Nebraska's only late-term abortionist, seems bizarre. Doesn't everyone know what the Nebraska legislature meant to prohibit, and doesn't everyone know that Nebraska did not intend to ban substantially all mid- and late-term abortions? As one federal judge put it, "partial-birth abortion" might not be a legal or medical term, but "members of . . . many legislatures around the country and a significant majority of the U.S. Congress seem to have a grip on what they want to outlaw." Nevertheless, the 8th Circuit described, in eerily passive voice how, in both D&E and D&X abortions, "the physician brings a part of a living fetus out of the uterus into the vagina. In a D&E procedure, fetal demise will occur after dismemberment. . . . During a D&X procedure, fetal demise will occur some time after the physician has evacuated the cranial contents. In either procedure, fetal demise will generally occur within a matter of minutes, and after part of the fetus has been brought out of the uterus into the vagina."


The decision and arguments in Carhart illustrate, among other things, how the terms of the partial-birth-abortion debate have shifted strikingly as it has moved from the legislative to the judicial arena. In Congress, pro-choice legislators insisted, as did President Clinton, that partial-birth abortion is exceedingly rare, employed only in the last months of pregnancy and only when the mother's life was at risk or when the unborn child was gravely deformed or disabled. These were, we now know, lies. As it happens, thousands of children are aborted this way each year, for purely elective reasons, and -- according to pediatric surgeon and former U.S. surgeon general C. Everett Koop -- partial-birth abortion is never necessary to protect the life or health of a woman.


In the courts, though, the argument against partial-birth-abortion bans is that they would prohibit too many abortions. Partial-birth abortion is no longer an "unpleasant" rarity, reserved only for the most tragic cases. Instead, it turns out not to be much different from other kinds of abortion. As 7th Circuit judge Daniel Manion has pointed out, the bans' opponents now "graphically describe the gruesome details of routine abortions in order to equate them with the D&X procedure that the statute describes." The point of this rhetorical shift is not to establish that these other, gruesome procedures should also be banned, but to argue that, because all abortion is gruesome, no particular method may be outlawed, either by Congress or the states.


This shift in argument has been almost uniformly successful in the lower courts. Still, Nebraska's attorney general has insisted that "federal courts have a duty to try to save, not destroy, democratically developed legislation" and that, even were there any doubt about the intended scope of the ban, the Court should look for clarification to the legislative history, and to the state's own reading, rather than to abortion supporters' disingenuously expansive interpretations. Carhart, on the other hand, insists that the statute cannot be narrowed and should not be rewritten by a federal court. What's more, he insists, even a clear, precise, and limited ban on partial-birth abortion would force women "to undergo undesired and unnecessary medical procedures and prevent some of them from undergoing the safest method of abortion." Such a ban "serves no legitimate state interest" and has the "impermissible purpose of elevating legal protection of the fetus to the detriment of women's health and liberty."


What will the Court do? Justice O'Connor seemed sympathetic to the argument that all abortions are "gruesome" and that Nebraska's partial-birth statute might therefore be construed to prohibit too many abortions. And Justice Kennedy, the other likely swing vote on the bench, appeared concerned about the statute's lack of a health-of-the-mother exception. Turley is probably right; the smart money is on a ruling striking down Nebraska's ban.


If the justices do strike down Nebraska's prohibition, it matters how they do so. The least significant decision would be a narrow one, perhaps with language or concurring opinions instructing states on how to draft a constitutional prohibition. The most dramatic -- and disturbing -- scenario would be an endorsement by the justices of the chillingly candid partial-birth-abortion opinions of Judge Richard Posner of the 7th Circuit Court of Appeals.


In October 1999, the full 7th Circuit voted 5-4 to uphold partial-birth-abortion bans in Wisconsin and Illinois. The majority recognized that the "states are concerned about the D&X procedure and did not set out to forbid any other," and was not distracted by opponents' attempts to manufacture ambiguity or expand the statutes' reach. Posner dissented: Not only did the ban apply to other procedures like D&E, and therefore impose an "undue burden" on the abortion right, the ban and others like it were, he concluded, fundamentally and unconstitutionally "irrational." After all, partial-birth abortion bans


do not protect the lives of fetuses either directly or by seeking to persuade a woman to reconsider her decision to seek an abortion. . . . The statutes do not seek to protect the lives or health of pregnant women, or of anybody else. . . . The statutes do not outlaw a particularly cruel or painful or horrifying mode of abortion. . . . From the standpoint of the fetus, and, I should think, of any rational person, it makes no difference whether, when the skull is crushed, the fetus is entirely within the uterus or its feet are outside the uterus. . . . No reason of policy or morality that would allow the one would forbid the other.


What of the humanitarian impulse to lessen the pain to the unborn victim? Irrational: "Wisconsin's statute cannot be analogized to statutes that prohibit cruelty to animals." Or what of the objection that partial-birth abortion crosses the line between controversy and barbarism? Irrational: "All abortion procedures, and indeed a vast number of surgical procedures . . . , including forms of cosmetic surgery that strike many people as frivolous, are bloody and horrible."


Can Judge Posner really mean this? As Judge Manion pointed out, partial-birth abortion "is no routine surgical procedure. In a gall bladder operation, for example, the doctor removes and destroys a diseased organ, leaving behind a healthier person. . . . In a Caesarean delivery, . . . the doctor snips the umbilical cord and removes a live baby. In partial-birth abortion, the doctor snips the brain stem and removes a dead baby." No, Posner insisted, the only explanation for the ban is the public's "sheer ignorance." Duped by "activists" determined to "whip up" a fervor, the public mistakenly "thought the D&X procedure gratuitously cruel, akin to infanticide." But Posner knows better: The bans are less about saving babies than about "making a statement in an ongoing war for public opinion."


It is tempting to think that Judge Posner's brutal frankness, and his creepy impermeability to revulsion, could lead to a reaction in favor of the ban. After all, could the Justices really find it irrational to cringe legislatively at the "evacuation" of the "cranial contents" of babies inches away from birth? Isn't it true, as Judge Manion suggested, that the "apparent (or at least plausible) perception that [partial-birth abortion] is cruel and gruesome is comparable, albeit on a lesser scale, to the state's legitimate interest in the criminalization of the killing of animals through decompression or the shooting of caged animals"? As Manion notes, "These statutes do not save any animals; they merely regulate the manner in which they are killed."


But perhaps Posner has a point. Maybe emotional revulsion is an awfully thin basis for law, or indeed, for any other sort of action that aspires to reasonableness. Perhaps, but partial-birth-abortion bans are about more -- if more is needed -- than queasiness; they reflect a considered judgment that we are edging close to depravity. As the Court's assisted-suicide decision, Washington v. Glucksberg (1997), makes clear, the states may put up fences along the "slippery slope." In Glucksberg, the Court reaffirmed the states' valid and "unqualified" interest -- one that is "symbolic and aspirational as well as practical" -- in the "preservation of human life."


Such line-drawing is both permissible and urgently needed. Moynihan correctly observed that, even for reasonable abortion-rights supporters, partial-birth abortion is simply "too close to infanticide." And it might be even closer than he imagined. The abortionist, recall, holds the kicking feet of an infant just inches from being born. He then has to "evacuate the contents" of the "fetal skull" because "the cervix is not dilated enough to allow the head to pass through." But what if it is? What happens then?


This is not a frivolous questions. During a heated exchange last year in the Senate between Rick Santorum and Barbara Boxer -- the chief antagonists in the partial-birth-abortion fight -- Santorum pressed Boxer to draw lines. After initially suggesting that a child lacks rights until "you bring your baby home, when your baby is born," Boxer quickly retreated. But Santorum persisted: What if the baby has been delivered except for just a foot? What if just a toe has not been delivered? Can the baby still be killed? "We are trying to draw a line here," said Santorum. But Boxer had had enough: "I am not answering these questions! I am not answering these questions."


But "these questions" must be answered -- and the Court should permit the states to try to answer them -- because, as Judge Posner allowed, abortions sometimes "(unintentionally of course) produce a live birth." But Posner averted his gaze from what might happen next. He drew the curtain to shield precisely the scene that partial-birth-abortion opponents warn of and that its defenders fear the public will consider -- a doctor, perhaps with the help of a nurse, holding down and killing on a table a live baby.


In the end, the hallmark of democracy is, for better or worse, informed debate among those who must live under the law. On partial-birth abortion, that debate is happening -- Judge Posner's attack on the public's "sheer ignorance" notwithstanding. The justices should not high-handedly try to cut it short.




Richard W. Garnett is an assistant professor at Notre Dame Law School. He was a law clerk to Judge Richard S. Arnold, the author of the 8th Circuit's decision in Carhart, in 1995-1996.