Morphemics

Law and Politics of Abortion

List among those concepts or activities that tolerate no indifferent opinion "partial-birth abortion." When the Congressional ban on the procedure was recently overturned by a US District Court in California, many pro-lifers were dissapointed; some, probably outraged. Nor was the presiding judge too popular. An obvious ideologue, what could she have been thinking? Media coverage only serves to solidify opinions on either side. So I decided to read the decision. What I found suprised me: the decision was valid. Judge Phyllis J. Hamilton has demonstrated, successfuly as I see it, that the ban on partial-birth abortion is just bad law.

Three reasons are given for overturning the law. It 1) poses an undue burden on a woman's right to choose a second trimester abortion; 2) is unconstitutionally vague; and 3) requires a health exception. I'd like to focus on the first two reasons. The first seems almost ridiculous. Isn't this the very issue in the abortion debate? We pro-lifers don't believe that a woman should have the right to make such a choice. However, our position is entirely irrelevant to the case. Both the plaintiff and the defendant agree, as a matter of law, that such a right does exist. The very law that was struck down presupposes this right. Consequently, the trial cannot be the appropriate forum for challenging it. The question of being unconstitutionally vague, which is related to the due process clause, has to do with the rights of the doctors. The reasons work together. To see why, we need to look at the nature of an abortion.

The rarest forms of abortion are hysterotomy (abortion by caesarean) or hysterectomy. Because the consequences are so drastic (especially in the latter, which involves the inability to conceive), it is usually a last resort. Both are surgical procedures, which makes them inherently more dangerous for the woman than other forms of abortion. In addition, hysterotomies run the risk of leaving scar tissue that can cause the uterus to rupture during any subsequent onset of labor. Induction, or medical abortion, involves the use of drugs to kill the fetus after which it is expelled from the body. [Note: Please do not infer from my use of the word "fetus" that I don't believe we're talking about persons] The drugs can either be injected into the amniotic fluid or directly into the fetus. The first method doesn't always work, which can cause an undue health risk to the mother. The second works by stopping the fetus' heart. However, it is a more difficult procedure that cannot be performed in every abortion facility. Furthermore, in the event that the drug accidentally enters the mother's bloodsteam, it is dangerous to her own heart. Then there is the fact that, once the fetus is dead, the mother will go into labor, which, in some cases, may be the very thing that needs to be avoided.

Partial-birth abortions belong to a class called D&E, or dialation and evacuation. The cervix is first dialated and then the fetus is surgically removed. In a standard D&E, the fetus comes out in bits and pieces. Partial-birth abortion is technically called an intact D&E: the fetus is removed in one piece. It is extracted feet first. The head remains inside. Scissors are inserted into the back of the skull and the brains are sucked out causing it to collapse to the point that it can be extracted from the uterus. An intact D&E is usually not feasible if the fetus is too underdeveloped; nevertheless, when it is an option, it is safer for the mother than a standard D&E, which requires several passes of the surgical instruments as opposed to one. There is also the risk in a standard D&E that the mother could be perforated with fetal bones or that the doctor could miss some pieces.

There are cases in which an intact D&E is the safest form of abortion for the mother. To deny it does pose "an undue burden on a woman's right to choose." If she does decide to abort, she is forced to choose a procedure with potential complications she would not have had to face. Furthermore, she may find herself limited to induction or hysterotomy/hysterectomy because the doctor would refuse to do any kind of D&E. Evidentally, it is possible for a fetus in an intended standard D&E to come out in one piece and show signs of being alive on the way out. Under the wording of the law, a doctor could be prosecuted for a violation thereof even though he had no intention of doing so. Due process requires that laws not be vague. A person has the right to know the legal status of whatever he may be doing.

Whether or not we believe that a woman should have the right to choose an abortion, legally, she does. Questions of constitutionality must rest on this fact. Banning intact D&E forces the woman to choose potentially more risky options and it puts the doctors in a position of inadvertantly violating the law. The partial-birth abortion ban does violate the constitutional rights of both doctor and patient.

What would motivate Congress to pass an unconstitutional law? I don't think we can ascribe just one reason. Some were genuinely concerned with the rights of the unborn. For others, it's just politics. Those of us who hold to a pro-life position, if we can't see abortion banned altogether, want to see either the number of abortions reduced, or, at the very least, the intensity of the suffering reduced. The partial-birth abortion ban would have done neither. Consider the issue of fetal pain, which was cited as one of the reasons for passing this law. If it were a matter of preponderance of the evidence, I would vote one way. However, if I had to be sure beyond a reasonable doubt, I wouldn't be able to convict a fetus of feeling pain. A fetus cannot communicate the fact that it is in pain. We can only infer that it is by watching its responses. However, these could be autonomic. It is possible that the brain has not developed enough to interpret particular stimuli as painful. Nevertheless, Judge Hamilton makes a valid point: she says that, if a fetus does feel pain, this is irrelevant to the immediate question. The reason why this is the case leads me to one of two conclusions about those who passed the ban. Either they are ignorant of what is involved in an abortion, or they couldn't care less about the welfare of the fetus: this is all about getting voted back into office.

So why is fetal pain irrelevant? Because the alternatives would be even more painful. Think about what the defendants are saying. They agree, as a matter of law, that a woman has the right to choose and that other forms of abortion are acceptable. But they want intact D&E banned on the basis that the fetus feels pain. And so, to relieve the fetus of its pain, they suggest abortion by some other means. Which is worse: being stabbed in the back of the skull with scissors (which should lead to a fairly quick death), or being dismembered alive? A lot of the horror felt at the thought of partial-birth abortion is psychological. Since part of the fetus is actually outside of the mother's womb, we're inclined to think "A Baby!" (as though this weren't the case with every other fetus). Meanwhile, we never stop to consider that an intact D&E may be one of the most humane forms of abortion.

Even if a law were made that addresses the health of the mother, and even if it were very specific, leaving no doubt as to what was legal, I don't see how a law banning a specific type of abortion could ever be constitutional. It would violate a woman's right to choose every time. The partial-birth abortion ban tried to treat a symptom. We need to get to the root of the problem, which is a woman's right to choose and another post.