More Thoughts on Partial-Birth Abortion Case

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I wrote a column about this case a few weeks ago, which appears at this link. In the column, I compare the distinction the statute implicitly draws (between killing a second-trimester fetus when it is seconds from being born alive, on the one hand, and actually delivering the second-trimester fetus alive, on the other) as comparable to the distinction between physician-assisted suicide and removal of life support. Though the distinction – in both contexts – strikes me as weak, it evidently appeals to the Court, which may bode well for the continuing right to terminate a pregnancy by inducing labor prior to viability, if by no other method.

What I do not say in the column but nonetheless believe is that the distinction the statute explicitly draws, between “partial birth abortion” (when the abortion provider kills the fetus after most of it has exited the womb) and other second-trimester abortions (in which the provider kills the fetus while it is still inside the womb) is utterly arbitrary. In both kinds of abortion, the provider actively kills the fetus, and the only difference is where inside the woman the fetus happens to be at the time of death. The objective of the legislation is on its face to force the Justices and the public to confront the physical reality of later-term abortions, with which most people are understandably uncomfortable. The tragedy of it all is that the various assaults on abortion rights, including the passage of parental notification laws, which I discuss in an older column, pro-life protesters’ harassment of doctors and patients, resistance to morning-after pills and RU486, and opposition to sex education that extends beyond calls for abstinence have led to more of the late-term abortions that supposedly horrify everyone (including the devout proponents of the legislation). It seems, then, that the more successful the religious right is at posing obstacles to contraception and abortion, the greater the number of late-term abortions that occur. Of course, a person who holds the view that a one-celled pre-embryo is no different from a full-term fetus might not find this development particularly disturbing.