On the New Abortion Candor

Richard Stith

                Back in 1973, in the Roe v. Wade case, the U.S. Supreme Court decided that states may not prohibit abortion based on a "theory" that life begins sometime before birth (1). The Court explicitiy avoided addressing the issue of whether states may prohibit killing a fetus during birth (2).

                Some physicians have been going further than Roe, killing during induced delivery.  Pulling the fetus almost out, feet first, they vacuum up its brain.  Responding to widespread public revulsion, state and federal legislaturas have voted by large majorities to ban such "partial-birth" abortions.  Appellate court rulings have recently begun to follow.

                For example, Nebraska passed a law forbidding "an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the child and completing the delivery."(3) In the fall of 1999, this and similar legislation in other states was struck down by Judge Richard Arnold (once mentioned as a likely Clinton nominee to the U.S. Supreme Court), writing for the United States Court of Appeals for the Eighth Circuit (4). Shortly thereafter, however, nearly identical laws were upheld by the Seventh Circuit,(5) despite a passionate dissent by Judge Richard Posner (the law-and-economics advocate).(6)

             As a result of this conflict between circuits, the issue of the constitutionality of the bans will have to be resolved by the Supreme Court.  In the meantime, however, the remarkable candor of the Arnold and Posner opinions deserves some attention.

             Arnold does not claim that the lives protected by these statutes amount only to a "theory", as Roe had asserted in striking down earlier anti-abortion laws. lndeed, he differs from Roe in pointing out that even in mid-pregnancy abortion takes a life, and often does so during partial delivery.  The ban on killing a "living unborn child" during "delivery" must be struck down precisely because, he says, that is just what really happens in standard second-trimester abortions.

             Judge Arnold is quite graphic about the abortions he defends:

"In a D&E procedure, the physician inserts forceps into the uterus, grasps a part of the fetus, commonly an arm or a leg, and draws that part out of the uterus into the vagina.  Using the traction created between the mouth of the cervix and the pull of the forceps, the physician dismembers the fetal part which has been brought into the vagina, and removes it from the woman's body.  The rest of the fetus remains in the uterus while dismemberment occurs, and is often still living...

[Even in] a suction-curettage procedure where the fetus does not remain intact, part of the fetus which is still living may be drawn into the vagina before demise occurs".(7)

These ordinary abortions must be considered "partial-birth" abortions, according to Arnold, whenever the fetus dies after the physician "delivers" a part, such as an arm or a leg.

             But how can the judge know that the dismembered fetus is "often stili living"?  Because, according to testimony at the trial court cited by Arnold,(8) the aborting physician can see on his ultrasound monitor that the child's heart is still beating.

             Judge Posner likewise emphasizes the great similarity between partial-birth abortion and other abortion, though he focuses on identity not of technique but of outcome:

             "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.  Yet the position of the feet is the only difference between committing a felony and performing an act that the states concede is constitutionally privileged.... [T]here is no meaningful difference between the forbidden and the privileged practice.  No reason of policy or morality that would allow the one would forbid the other"(9)

             In his conclusion, Posner returns to what he calls the "gruesome" quality of all such abortions:

"I do not mean to criticize anyone who believes, whether because of religious conviction, nonsectarian moral conviction, or simply a prudencial belief that upholding the sacredness of human life whatever the circumstances is necessary to prevent us from sliding into barbarism, that abortion is always wrong and perhaps particularly so in late pregnancy, since all methods of late-term abortion are gruesome.... But what is at stake in these cases is whether the people who feel that way are entitled to coerce a woman who feels differently to behave as they would in her situation."(10)

             What will be the political effect of this new candor?  The United States Supreme Court for many years inhibited serious discussion of abortion by using its immense prestige to encourage doubt about what abortion actually does.  Perhaps surprisingly, opponents of partial-birth abortion were able to use this doubt to their legislativa advantage.  Posner points out incisively that "public support for the [partial birth abortion bans] was [in part] based ... on sheer ignorance of the medical realities of late-term abortion.  The uninformed thought the [partial-birth] procedure gratuitously cruel, akin to infanticide; they didn't realize that the only difference between it and the methods of lateterm abortion that are conceded all round to be constitutionally privileged is which way the fetus's feet are pointing."(11)

By remedying this public ignorance with their candor, Arnold and Posner may make partial birth abortion as acceptable as ordinary abortion.

                Of course, there may emerge a contrary consistency.  A newly-informed public could shift the other way, deciding that ordinary mid-pregnancy abortion is as unacceptable as partial-birth abortion.

Copyright@ 1999 by Richard Stith.

Richard Stith holds a J.D. and a Ph.D. from Yale University and teaches at Valparaiso University School of

Law, Valparaiso, Indiana 46383-6493.  He may be reached by e-mail at <richard.stith@valpo.edu

Notes:

1 410 U.S. 113, 162-65.

2 Id. at 117-18, note 1.

3 Neb. Rev. Stat. § 28-328(1).

4 Carhart v. Stenberg, 1999 WL 753919 (8th Cir. (Neb), http://lw.bna.com/lw/983245.htm (Nebraska); Little Rock Family Planning Services v. Jegley, 1999 WL 753928 (8th Cir.(Ark.), http://lw.bna.com/lw/991004.htm (Arkansas); Planned Parenthood of Greater Iowa, lnc. v. Miller, 1999 WL 753770 (8th Cir. (Iowa), http://lw.bna.com/lw/991372.htm (Iowa).

5 The Hope Clinic v. Ryan, 199 WL 974098 (7 th Cir. (III), http://lw.bna.com/lw/981726.htm

6 Id. at *18.

7 Little Rock at *3.

8 Carhart at *9, note 8; see also Little Rock at *5, note 5.

9 The Hope Clinic at *22.  Posner goes on to do what he calls "line-drawing" between partial birth and complete birth:

"Once the baby emerges from the mother's body, no possible concern for the mother's life or health justifies killing the baby.  But as long as the baby remains within the mother's body.... [there is] a right of abortion." (id. at *25)

But, by Posner's own reasoning, this line seems as easily erasable as the one he just criticized. "From the standpoint of the fetus," it makes no difference whether the killing takes place just outside or just inside the uterus.

10 Id. at *34

11 Id. at *23