Respect Life Supplement

Partial-birth abortion exposes depravity of abortion, legal flaws

By Susan E. Wills

In 1992, Dr. Martin Haskell presented a paper titled “Dilation and Extraction for Late Second Trimester Abortion” at a National Abortion Federation (NAF) seminar. He explained the “D & X” abortion method that he “routinely” used to kill unborn children at 20- to 24-weeks’ gestational age—and sometimes 26 weeks of gestation.

In March 1996, in riveting eyewitness testimony to Congress, a nurse gave “partial-birth abortion” a face—specifically the “most perfect angelic face” of a baby boy at 26½ weeks’ gestational age. Haskell had delivered the boy alive, feet-first, up to his neck, then stuck scissors into the base of his skull, inserted a suction tube and vacuumed out his brain.

The defense of partial-birth abortion is undermining the regime established by the U.S. Supreme Court in Roe v. Wade. Partial-birth abortion may be Roe’s undoing.

Some consider partial-birth abortion akin to infanticide. In philosophical terms, it is the reduction ad absurdum of the premise that a woman has a Constitutional right to have a doctor kill her offspring for economic or social reasons at the earliest stage of pregnancy.

But some judges—including two on the Supreme Court—have defended partial-birth abortion on the ground that there is no moral or logical difference between it and the alternative, equally gruesome second-trimester abortion method of dismembering a child in the womb and removing his or her body parts piecemeal. Doctors who perform late-term abortions have also made their view clear. For them, the difference between killing a partially-born child and one who is fully delivered is a legal technicality.

Thanks to eight years of hearings and debates in Congress, pro-life educational efforts and the proliferation of alternative news sources, particularly the Internet, Americans did learn about partial-birth abortions and more than 70 percent of the people want to ban them.

Haskell’s 1992 speech has far-reaching consequences:

• At least one wire service, one major polling company and a number of major newspapers still misrepresent Roe as legalizing abortion only “in the first three months of pregnancy.” Many Americans were shocked to learn that abortions are being done in the second and third trimesters of pregnancy, and are legal throughout pregnancy.

• The gruesome particulars of partial-birth abortion shifted the focus of the public debate away from the sometimes difficult social and economic circumstances women may face due to an unplanned pregnancy toward the act itself. With the growing use of ultrasound, many Americans began to see the child’s obvious humanity.

• Nationwide polls have recorded a seismic shift toward pro-life positions. From 1991 to 1995, polls showed that 32 percent of Americans, on average, favored unrestricted abortion. In mid-1996, as public knowledge of partial-birth abortion spread, such support dropped to 25 percent. In an April 2005 poll by the polling company, inc.™ which offered six possible views on abortion’s legality, only 10 percent said abortion should be “legal any time, for any reason.” That compared to 17 percent who responded “never legal,” 14 percent who said “only legal when the mother’s life is in danger,” and 31 percent who would permit abortion only when the mother’s life is at risk and for rape and incest.

• Publications like American Medical News and The [Bergen County] Record did their own research and discovered that thousands of partial-birth abortions were being done annually, primarily on healthy mothers and healthy babies.

• The strong public reaction against partial-birth abortion resulted in the enactment of laws banning the procedure in 30 states between 1996 and 2000. Congressional efforts to ban partial-birth abortion nationwide were stymied by two vetoes by President Clinton and, in June 2000, by the Supreme Court when it declared Nebraska’s law unconstitutional. Americans saw how some government officials can disregard and thwart the will of the people on this issue.

• Partial-birth abortion has had a probable influence on elections. NARAL Pro-Choice America, in its 2006 report on reproductive rights, identifies 24 states as having pro-life legislatures, 19 of which also have a pro-life governor; the report states that nine states have a majority pro-choice legislature and four states also have a pro-choice governor.

• NARAL’s report also describes a flurry of pro-life legislative activity at the state level. Fifty-eight pro-life measures passed in 2005 alone of the 614 pro-life measures considered that year.

• A growing number of federal judges openly criticize the Supreme Court’s abortion jurisprudence for, among other things, unclear and inconsistent standards which often contradict standards applied in other legal contexts.

• Americans now strongly disagree with a “litmus test” for judicial nominees requiring that they demonstrate whole-hearted allegiance to Roe v. Wade.

The Supreme Court’s 2000 decision in Stenberg v. Carhart found Nebraska’s partial-birth abortion ban unconstitutional, with the result that state bans in 29 other states were voided. Three federal district courts later found the federal Partial-Birth Abortion Ban Act of 2003 unconstitutional on the basis of Stenberg. Three federal appellate courts have agreed.

While no one can predict Supreme Court rulings, there is reason to hope that the Supreme Court will uphold the federal ban on partial-birth abortion when it hears the case of Gonzalez v. Carhart this fall.

First, the abortion procedure is defined in a more precise and limited way in the federal ban, which prohibits killing the infant after he or she is delivered “substantially outside the mother’s body at specified anatomical points.”

Second, neither Roe v. Wade nor the 1992 decision which affirmed and modified it, Planned Parenthood v. Casey, provides Constitutional protection for killing a child who is substantially outside his or her mother’s body.

Third, when Congress enacted the federal partial-birth abortion ban, it made specific factual findings. Eight years of Congressional hearings and debate proved that partial-birth abortion “is never medically necessary” to preserve the mother’s health and “poses significant health risks.”

Partial-birth abortion has exposed the depravity of late-term abortion and its similarity to infanticide. It has also exposed flaws in our legal system, which has prevented the American people from stopping this appalling practice and protecting unborn children consistent with the Constitution and the moral aspirations of the people, guided by the self-evident truths in our Declaration of Independence.

We can hope that the Supreme Court will review Gonzales v. Carhart with minds attuned to the Constitution and hearts open to the truth about human life.

(Attorney Susan Wills is associate director for education for the U.S. Conference of Catholic Bishops’ Secretariat for Pro-Life Activities.) †