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Partial Victory

Four justices on the Supreme Court have accepted all the premises for a constitutional right to infanticide. They lack only the nerve to take their reasoning to its logical conclusion.

Partial-birth abortions are not really worse than other methods of late-term abortion. There is indeed something irrational about concluding that a method of killing a seven-month-old fetus should depend on the location of his foot. But just who is responsible for making a fetish of location in the first place? It is the Supreme Court itself that has declared — with no support in the Constitution — that what distinguishes a fetus with no claim to legal protection from an infant with such a claim is whether it is in the womb. The child’s stage of development does not really matter in this jurisprudence: A premature baby has more legal protections than a full-term fetus. In an earlier abortion case, Justice Stevens himself has suggested that a “9-month-gestated, fully sentient fetus on the eve of birth” is not “a human being.”

Legislators seeking to ban partial-birth abortion are, therefore, trying to work around the irrational policy the Supreme Court, with the blessing of these dissenters, has created. They are trying to mark an outer limit to that policy: If children within the womb are not going to be protected, then at least children partway outside it should be.

The liberal dissenters have not merely made a minor logical error here. Take their argument seriously for a moment. They claim that it is conceivable that in some cases, partial-birth abortion is the safest method of abortion, and therefore it has to be allowed. (And it has to be allowed whether or not the pregnancy itself threatens the mother’s health.) They further claim that it should make no difference to anyone where the child’s feet are positioned when he is aborted.

Let’s apply this argument to infanticide. It is conceivable that in some cases removing the child from the womb completely before killing it is the safest option. And surely it should make no difference to any rational person whether the infant was fully within the womb, partly inside it, or all the way out when his skull is crushed? Four justices on the Supreme Court have accepted all the premises for a constitutional right to infanticide. They lack only the nerve to take their reasoning to its logical conclusion.

It is good that the Court has offered back a limited measure of democratic authority over abortion policy. The major theoretical concession in Justice Anthony Kennedy’s majority opinion — that the courts should make sure laws against partial-birth abortion are not misapplied — may not in practice prove important. Pro-abortion litigators, we suspect, are going to have a hard time finding cases in which laws against partial-birth abortion can plausibly be said to have been applied too broadly. But let’s not forget how far four justices are willing to go in defense of abortion.

ACKNOWLEDGEMENT

The editors. “Partial Victory.” National Review (April 18, 2007).

This article is reprinted with permission from National Review. To subscribe to the National Review write P.O. Box 668, Mount Morris, Ill 61054-0668 or phone 815-734-1232.