Partial-birth abortion is back in the news, and for the first time, there appears to be some hope for the pro-life side. Of all the extraordinary things that the United States Supreme Court has done in the past few decades, none matches its 1973 decision in Roe v. Wade. Justice Blackmun’s majority opinion articulated a rule pulled, if not from one of his bodily orifices, then out of thin air. The states could not prohibit abortions during the first trimester of a pregnancy; they could regulate them to preserve the health of the mother during the second trimester; and they could regulate and even prohibit them during the third trimester, in order to protect the fetus’s interest in its “potential life.”
The arbitrariness of Roe, which no constitutional scholar could plausibly defend, put the “right to abortion” in some jeopardy. During the late 80’s and early 90’s, the Supreme Court appeared to be edging toward admitting its mistake and overruling the case. Then, in Planned Parenthood v. Casey (1992), a decision which rivals Roe for sheer judicial audacity, the Court, in an unsigned plurality opinion (in which Justices Souter, Kennedy, and O’Connor joined, none having the courage to claim it as his or her own), abandoned Roe‘s trimester standard, though not the “right to abortion.” The Casey plurality declared that states could prohibit “non-therapeutic” abortions performed on fetuses who had reached the point of viability outside the womb, but henceforward no other abortion restrictions would be tolerated if they imposed an “undue burden” on the mother’s “right” to terminate her pregnancy. No one knows what an “undue burden” is, other than a license for judicial lawmaking, although the Casey plurality did suggest (rather unhelpfully) that “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
You now know almost enough constitutional law to decide that pesky partial-birth abortion question. This unspeakably grisly procedure, known in medical parlance as an “intact dilation and extraction” or “D&X,” has been prohibited by the legislatures of 30 states. Does a state’s prohibition of this practice impose an “undue burden” on a woman’s right to abortion?
Two-thirds of the 30 state laws have been found unconstitutional by courts applying the “undue burden” standard, or on the grounds that they were so vague that they interfered with procedures other than partial-birth abortion. But some of the statutes have been upheld, most notably in the aptly titled Hope Clinic v. Ryan decision rendered in late October. Writing for a sharply divided majority of the United States Court of Appeals for the Seventh Circuit, Judge Frank Easterbrook (one of the most intellectually gifted federal judges) declared that the bans on partial-birth abortion in Illinois, Wisconsin, and Indiana met constitutional muster. They imposed no undue burden on women’s rights, said Easterbrook, because the statutes contained an exception where the life of the mother was in danger, because the purpose of the statutes was clear enough, because other means of abortion were available, and because there was credible medical evidence that there were no health benefits to the partial-birth abortion method.
Other federal circuit courts, passing on the same issue, had found an “undue burden” to be present on the grounds that the statutes provided no exceptions for preserving the health of the mother (which could, conceivably, include the preservation of mental health by freeing the mother from the stress of raising another child). Some of these courts also took the position that there was adequate medical evidence that partial-birth abortion was, in some cases, safer for the mother than other forms of late-pregnancy termination (such as, for instance, dilating the uterus, then inserting instruments to kill and dismember the fetus while it is entirely inside the womb, before extracting it piece by piece). In an unusually blistering dissent in the Hope Clinic case, Chief Judge Richard Posner (also a gifted jurist, and Easterbrook’s former colleague at the University of Chicago Law School), sided with the courts which had found an “undue burden” in partial-birth abortion prohibitions. Posner even went so far as to state that the real purpose of partial-birth abortion statutes was to cast doubt upon the constitutional reasoning of the Supreme Court itself. Just so.
The conflict in the federal courts means that the Supreme Court will probably have to resolve the dispute; if the Court does not duck the issue, we can expect a partial-birth abortion decision within a couple of years. Like so many other issues in constitutional law, this one may well turn on who is appointing Supreme Court justices beginning in January 2001. A decision on partial-birth abortion would also offer the Court an opportunity to abandon the maddening “undue burden” standard, or even to overturn Roe v. Wade itself Catherine Weiss, director of the ACLU Reproductive Freedom Project, called Judge Easterbrook’s opinion in Hope Clinic “heartbreaking.” Collen Council, another ACLU lawyer, said it was “radical.” But State Senator Scott Fitzgerald, who wrote the Wisconsin law upheld in Hope Clinic, labeled Easterbrook’s decision “groundbreaking,” and Wisconsin’s attorney in the case said it was “well-reasoned.” The New York Times argued that the decision was “a serious assault on the reproductive freedom guaranteed women.” Janet Benshoof, president of the Center for Reproductive Law and Policy, claimed that Hope Clinic had declared “that fetuses throughout pregnancy are more important than women.” Ms. Benshoof also stated that “[T]his is tire Republican Party platform at work” and, with presumably unintended irony, that “This is judicial activism run amok.”
The real running amok occurred in 1973, of course, and the frenzy of Hope Clinic’s critics may indicate their fear that a future Supreme Court may come to that realization.