PARTIAL BIRTH ABORTION CASES, APRIL 2007

In 2003, Congress passed a statute outlawing the practice, of a doctor killing a baby before its birth, by a method called partial birth abortion (“PBA”). As we understand it, the American Medical Association favored the legislation; but many respected gynecologists opposed the legislation. No, Congress did not claim the power generally to regulate medicine, but claimed that this statute was necessary and proper to regulate interstate commerce.

Thereafter, opponents of the statute brought lawsuits claiming that the statute violated the United States Constitution, because it did not include an exception to protect the mother’s health. In other words, the challenge was not to whether interstate commerce was involved, nor whether the ban was a reasonable exercise of the power of regulating such commerce, but whether this new ban of the PBA method, this restriction on the method of performing abortions on living babies (yet undelivered), provided a health exception that would meet constitutional muster.

The Court, five to four, ruled that the statute was not unconstitutional on its face (it withstood a facial challenge on this ground). The Court left open the question of whether in some particular case, a woman or doctor may challenge the federal ban because the PBA is necessary to protect the health of this particular mother. In a future case, as applied, the statutory ban may be ruled by a court to be unenforceable. [Can a judicial system which requires years, sometimes decades, to finalize a death warrant, gear up fast enough to protect the mother in such a case? Remember, we are not talking here about saving the unborn; the abortion method permitted by the statute also takes the life of the baby, though by a method similar to drawing and quartering the baby in the womb, and not by the outlawed PBA method.]

If you were a living baby in the womb, undoubtedly you would want to live rather than die. We do not justify the act of abortion in the second and third trimester on the basis that the child would choose suicide, or infanticide, if delivered. Congress has outlawed the PBA method of ending the baby’s life, and the statute has passed constitutional muster, because Congress has left an alternative abortion method which reasonably protects the health of the mother. The alternative method (D & E) may not be as safe for the mother in all cases as the PBA, but it is reasonable to outlaw the PBA in all cases. The rationale, the reasons why, are right there in the majority opinion.

What does the Congress make criminal? The acts of the doctor. It is all right, that is, lawful, to take the life of the unborn child in the womb. Do it by lethal injection and then dismemberment and extraction; or do it by dismemberment and extraction which results in death. Do not, repeat, do not, kill the baby by PBA. In essence, PBA is the intentional killing of the baby, before its birth (thus not infanticide, another crime), but after the baby’s head has left the womb, or in the case of a breach birth, after the body up to the navel has left the womb. Congress spelled out these anatomical landmarks.

These are very serious questions, medical, moral and religious, which do not even arise until we have the tragedy of a case in which a living baby is in the womb in the second or third trimester, and the doctor says the circumstances warrant an abortion and the law does not forbid the abortion.