Bench Memos

Worrying About Abortion

The Washington Post is worried about a surge of pro-life initiatives. That sounds like good news for pro-lifers, but the Post is a loyal watchdog for the “pro-choice” cause — if it were not barking, that could only mean that the last pro-lifer in America had gone to sleep. Is there really something happening this time?

The answer is yes, and no.

The Post story unleashes a bogeyman in its third paragraph. The writer claims that a new Nebraska law that largely prohibits abortion past 20 weeks “introduc[es] into law the concept of ‘fetal pain.’” But this is not true. Heck, “fetal pain” is not an even a “concept.” Fetal pain is an everyday reality, and it always has been. No sane party to the abortion debate has ever denied that sometime before term, a fetus feels pain in response to certain stimuli. And fetal pain has been a staple feature of the abortion-law debate since the 1980s.

The Post writer’s next novelty act occurs in the same paragraph. He asserts that the Nebraska law “marked the first time that a state has outlawed [abortion] so early in a pregnancy without an exception for the health of the woman.” If this claim about the law — no health exception — were true, it would indeed be news. But in fact, the Nebraska law expressly stipulates that it does not apply when an abortion is necessary to “avert a serious risk of substantial and irreversible impairment of a major bodily function” of the mother. If that does not count as a health exception, I do not know what would.

Later in the piece, he further complains that the Nebraska law “contains no exception for a woman’s mentalhealth.” Indeed it does not. However, as he fails to note, in abortion law, “mental health” is the equivalent of “abortion-on-demand.”

Since this is a Post story about threats to Roe v.Wade, the writer wedges in the obligatory slam at Chief Justice John Roberts, Justice Sam Alito, and the emerging “conservative majority” on the Bush-made Court. But he does not even speculate about whether Barack Obama’s two appointments — Sonia Sotomayor and Elena Kagan — were nominated (at last in part) to shore up what is in fact a “liberal” majority on abortion. Anyway, there is little new here. The Court’s center is what matters on abortion, as it does on so many other social issues. And that center is and has long been Anthony Kennedy (as the Post article more or less does make clear).

What’s really going on? Nebraska enacted last spring a ban (with limited exceptions) on abortions past 20 weeks. The main practical aim seems to have been to put that state’s infamous partial-birth abortionist — Leroy Carhart — out of business. In this Nebraska succeeded: Carhart subsequently decamped to Germantown, in the Post’sown backyard. Twenty weeks was selected because there is an increasing body of scientific evidence that unborn children typically feel pain by then. Sentience matters because it signals advanced fetal development. And that matters because — in the illogic of the pertinent Supreme Court precedents — the “state’s interest” in protecting fetal life seems to depend upon, or at least be strengthened by, such marks of maturity.

The Nebraska law is a good law, and the Post writer correctly says that it is likely to be copied elsewhere (including Indiana, I suspect). There is a bit of a debate within pro-life circles whether a better version of the law would include (as the Nebraska law does not) scientific and medical findings about threats to a mother’s health when abortions are performed so late in pregnancy. In any event, some variation of the Nebraska law is going to be tested in federal court before long, and the case is destined, I think, to be resolved by the Supreme Court. But that may not happen for another two or three years, and whether Anthony Kennedy will still then command such decisions is anybody’s guess.

Whenever that day comes, it will be an important decision. But it will not be an occasion to fundamentally reconsider Roe.That occasion is much more likely to be inspired by someone like Scott Peterson, the California man who killed his wife, Laci, and his unborn son, Connor. I think that someday soon, an angry young man convicted of murdering his unborn child is going to force an appellate court to seriously address the Equal Protection time bomb ticking away in abortion jurisprudence. He will say that he cannot be convicted of murdering a “person” (as the language of the feticide law under which he stands convicted will state) while his wife could not be touched for doing the same thing to the same child. Whatever one’s answer to the question of when a “person” begins, that answer cannot reasonably change depending on whether the man wielding a sharp scalpel is an angry father or the mother’s abortionist. And so, our angry young man will conclude, he is denied constitutional equality when the legislature arbitrarily calls his victim a “person” while hers is just, well, something very decidedly different.

This angry young man will be right.

– Gerard V. Bradley is a professor of law at the University of Notre Dame.



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