Partial Victory

In 2000, when the Supreme Court ruled that states could not prohibit partial-birth abortion, Justice John Paul Stevens wrote a concurring opinion in which Justice Ruth Bader Ginsburg joined. "Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of 'potential life' than the equally gruesome procedure Nebraska claims it still allows. . . . [T]he notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational."

The line-up on the Supreme Court has changed: Justice Samuel Alito has, mercifully, replaced Justice Sandra Day O'Connor. So the result has changed as well: Earlier today the Court ruled that laws against partial-birth abortion are constitutional (while leaving open the possibility that they could be applied unconstitutionally). This time, Justice Ginsburg wrote in dissent, joined by Stevens and the other two liberal justices. The dissenters raise the same objection that Ginsburg and Stevens had seven years ago, albeit a bit less pithily. They even quote the earlier opinion. Their argument deserves an answer.

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.