Complete insanity and partial-birth abortion

Coulter, Ann

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.)

So I don't know where Posner gets off denouncing the state legislatures for any irrationality in the law. It took those smart guys on the Supreme Court to come up with a right-to-kill, limited to victims within the uterus. The states are simply trying to legislate within the deranged and grisly analytical framework imposed on them by the Supreme Court,

'ls,' Again

Notably, Judge Posner has not lost all capacity to draw distinctions. He is still able to discern searing distinctions between abortionists who do not enthusiastically embrace partial-birth abortions and those who do. A certain Dr. Giles, for example, Posner smears as a man who-among other things-"may not even be wholly reputable." The abuse Posner heaps on Giles is interesting because Giles is, after all, an abortionist.

But this abortionist made the mistake of testifying in favor of the partial-birth abortion laws. Consequently, Judge Posner creates a record of invective against Giles-- in order to destroy his credibility in future cases.

Abortionists who do support partial-birth abortions, on the other hand, are praised as "reputable physicians""more reputable, perhaps.... than Dr. Giles."

Judge Posner additionally claims to find the laws "incurably ambiguous," because "[n]either 'biological offspring' nor 'living' is defined." When great jurists who heretofore could parse fine legal distinctions suddenly claim total befuddlement over words such as "offspring," it's fair to assume someone's leg is being pulled. i, myself, have no idea what Judge Posner is trying to get at, here. What does he mean by "define"? Define "incurably."

And what the heck does "is" mean?

Perhaps it would have been clearer if, instead of using charged words such as "the biological offspring of human parents," "human fetus," "infant" or "child;' the legislators had referred to crushing the skull of a "choice."

Posner complains that the law's requirement that a physician intend to perform a D & X abortion specifically (and not a constitutionally protected D & E abortion, which then inadvertently becomes a D & X if the baby slips out) is contrary to the intent requirement of other criminal law statutes.

Under murder statutes, for example, it is sufficient that one intend to do the act that causes the death of another person. The state is not required to prove that the defendant intended to cause the death itself.

Consequently, Posner denounces the state's attorney for admitting that the physician would have to intend to commit a D & X abortion specifically, rather than simply intend to, say, dilate the cervix, which then dilates too much, the baby come out and-whoops-it's a partial-birth abortion.

Posner says, "By this logic-which the state's Solicitor General actually embraced at argument-if you fire a machine gun into a lighted college dormitory at night, reckoning that you have only a 10% chance of actually killing anyone, and you do kill one or more of the residents, you are not guilty of murder, provided you didn't want to kill anyone but just wanted to see whether your machine gun was in working order."

Precisely. That's the analysis handed down to us by the smart guys on the Supreme Court. Indeed, that's a pretty good pr6cis of the logic of the entire pro-choice position. The beginning and end of the pro-choice argument is--stop me if you've heard this before-who are you to say when life begins?

Where to Kill the Baby

Okay, let's say we don't know absolutely whether that thing is human-the little clump of cells that left attached to an umbilical cord will inevitably develop into a fullgrown human, and from the moment of conception has all the genetic material that predetermines baldness, eye color, left handedness, and so on, and which may even at this point have a head, arms, toes, and fingers. Let's say we just don't know.

Even a determined agnostic on the question of when life begins would have to admit that there's at least a 10% chance that the clump of cells is a human life. Would any criminal law-as Judge Posner points out-permit you to abort that clump of cells if "you have only a 10% chance of actually killing anyone"?

No, not any criminal law under the sun--except those governing abortion.

If you kill a baby out of the womb, it's murder. If you kill a baby in the womb it's a constitutional right-no matter what the odds are that the thing you've just killed is a human. The states are writing the best laws they can under a regime of insanity.

A couple years ago, in South Dakota twin girls were born three months apart. The mother experienced premature labor just 23 weeks into the pregnancy and out popped Stephanie Bartels. The doctor stitched up the mother's cervix to keep the other twin in the womb. Though a 23-week-old fetus is not considered "viable," Stephanie beat the 4-to-1 odds against her survival and was alive and healthy to greet her twin sister when she was born fully three months later. During that three months, killing Stephanie would have been murder, killing her twin sister Sarah would have been a constitutional right.

Yes, I'd say that is irrational. But state legislators struggling within the interstices of such a legal monstrosity to prohibit infanticide are not the source of the irrationality.

Copyright Human Events Publishing, Inc. Nov 12, 1999
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