Complete insanity and partial-birth abortion

Normally lucid men are losing their minds, which must mean the subject of abortion has come up, again.

On Oct. 26, 1999, the U.S. Court of Appeals for the 7th Circuit upheld two abortion laws in the cases of Hope Clinic v. Ryan and Christensen v. Doyle. Writing for the majority, the inestimable Judge Frank Easterbrook sustained the partial-birth abortion bans enacted by Illinois and Wisconsin. The panel decision rejected plaintiffs' claims that the laws were "vague" or, in the alternative, that they constituted an "undue burden" on women's right to exercise their cherished constitutional right to hack up their babies.

The allegedly vague Illinois statute provides in pertinent part:

"In this Act: 'Partial-birth abortion' means an abortion in which the person performing the abortion partially vaginally delivers a living human fetus or infant before killing the fetus or infant and completing the delivery. The terms 'fetus' and 'infant' are used interchangeably to refer to the biological offspring of human parents."

And the Wisconsin statute provides in relevant part: -(b) 'Partial-birth abortion' means an abortion in which a person partially vaginally delivers a living child, causes the death. of the partially delivered child with the intent to kill the child, and then completes the delivery of the child."

'Incurable Vagueness'?

Does anything about those provisions seem confusing? Vague? An "undue burden" on the accessibility of abortion?

That was the argument plaintiffs made. it was also the argument accepted by the dissent, written by Chief Judge and Reagan appointee Richard Posner.

Posner gravely referred to the laws' "incurable vagueness," stating that they were "either absurdly (and unlawfully) overbroad or remarkably vague."

The only aspect of the law and the opinion that actually was confusing was the point evidently and readily agreed upon by all sides: If the same baby is chopped apart before being partially delivered, that would be an act protected by the Constitution. So the question before the court was whether the law clearly prohibited suctioning the brain out of a partially delivered baby, while adequately protecting the right to dismember the very same baby within the womb.

The baby-hacking that is a precious constitutional right is known as a dilation and evacuation abortion (D&E). "To perform a D & E:' the majority opinion dispassionately explained, "the physician dilates the cervix and dismembers the. fetus inside the uterus using forceps. Fetal parts are removed with forceps or by suction." This is not the procedure that was banned.

Only a "Dilation and Extraction," or D & X abortion, was prohibited by the states. This procedure consists of hacking up the baby after it has been partially delivered. (Hence the name-"partial-birth abortion.") Citing the American College of Obstetricians and Gynecologists' definition, the majority opinion described a D & X abortion thus:

"1. deliberate dilatation of the cervix, usually over a sequence of days; 2. instrumental conversion of the fetus to a footling breech; 3. breech extraction of the body excepting the head; and 4. partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus."

The funny thing is, by his own feigned obtuseness Judge Posner makes the case against this phony constitutional right invented by the Supreme Court in the first place. His objection to the law essentially boils down to this point:

"(I]t is extremely difficult, indeed probably impossible, to distinguish a 'partial birth' abortion from the methods of abortion that are conceded to be privileged.... [T]here is no meaningful difference between the forbidden and the privileged practice. No reason of policy or morality that would allow the one would forbid the other. We should consider therefore why any state would pass such a law."

Grisly Analytical Framework

Uh, yeah. That's sort of the point the religious fanatics (whom Posner goes on to blame for such irrational laws) have been making for some time.

Indeed, there isn't a whole lot of difference between crushing the skull of a baby who is I minute old and the performance of either a D & E or a D & X "procedure." That's not entirely true. To resemble a D & E abortion, the 1-minute-old baby would have to be dismembered; whereas similarity to the D & X procedure would require that the 1-minute-old baby have its skull crushed and its brains suctioned out.

But the Supreme Court doesn't see it that way, Dick. Back in 1973, seven lawyers-who, incidentally, had not been hired for their dazzling philosophical skills or ethical insights-did discern a difference between dismembering a baby inside the uterus and doing the same thing outside the uterus. In Roe v. Wade, the court invented a phony constitutional right to baby killing, provided only the baby is inside the womb. (Just to keep you up to speed, 20 years later, the court elevated the logic of Roe to complete incom-- prehensibility with the "undue burden" test invented in Planned Parenthood v. Casey.)