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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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.