Let us pretend for a moment something that we do not believe: that Roe v. Wade, as modified by subsequent decisions, is now too old to be overruled, and that the Supreme Court should continue to protect abortion from legislative prohibition at any stage of pregnancy. Even on those assumptions, the Court should allow partial-birth abortion to be prohibited. Nothing in Roe commits the Court to keeping legislatures from prohibiting the killing of a partially born infant. The Court mistakenly ruled, in a 5–4 vote in 2000, that legislatures do not have this power. It should reverse itself.
Partial-birth abortion involves the partial delivery of a child, the puncturing of its skull, the removal of its “intracranial contents,” and then the delivery of a dead baby or extraction of its parts. Even many people who favor the abortion license in general think that this procedure should be banned. The case for protecting it from restriction comes in gross and sophisticated forms. Defenders of partial-birth abortion have typically resorted to misinformation: underestimating the frequency of the procedure, falsely claiming that anesthesia kills the fetus while still in the womb, and suggesting that it is done out of medical necessity.
Whether the procedure is “rare” is to some extent a subjective judgment. At least 2,000 partial-birth abortions are committed every year. As Douglas Johnson of the National Right to Life Committee has pointed out, the network news would be running stories about an epidemic if something killed prematurely born infants in neonatal wards so regularly.
Nobody has ever shown an instance in which a partial-birth abortion was necessary to save the life or health of a woman. The most defenders can show is that there may be instances in which individual abortionists may decide that it is the safest method of abortion.
The sophisticated case is the one made by Justices John Paul Stevens and Ruth Bader Ginsburg, and in lower courts by, among others, Judge Richard Posner. The argument is that nothing morally distinguishes partial-birth abortions from other methods of abortion in the second and third trimester. What difference could it make to a fetus, these jurists ask, whether its feet are in or out of the womb when it is killed? The bans are irrational.
This argument has some force, but even more chutzpah. The Supreme Court, with the eager assent of all of these jurists, has declared that the child within the womb can have no protection. The mother has a right to kill it at any time it is within her. The ban on partial-birth abortion is an attempt to mark an outer boundary to this right.
If that boundary is to fall, one could, with equal force, ask what difference it makes to a child whether it is killed within the womb or entirely outside it. One could, that is, use the Court-enforced legality of late-term abortion to construct a right to infanticide. Surely some abortionist somewhere could be found who would conclude that it is safer for the mother to remove the child entirely from her womb before dealing the fatal blow.
The Court may now have a majority willing to allow a ban, the Senate having wisely confirmed Chief Justice John Roberts and Justice Samuel Alito. Whether the Court will have more such justices, or more Ginsburgs and Stevenses, will depend on today’s votes.
The Court takes up the issue this week. An argument can be made that it should junk Roe and its progeny altogether, and get out of the business of micromanaging abortion policy. But it is not necessary for it to do so to reach the right result in the case.