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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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.