Sometime in the fall, before the elections in November, the pro-life leadership in Congress will bring back the bill to forbid partial-birth abortions. Only the veto by President Clinton prevented it from becoming law in 1996. But for the opponents of the bill, that veto bought time, and in that time the federal courts have been at work. When the pro-life leadership returns to that bill in the fall, they may discover that they have been reduced to acting out a gesture with no consequence: that the federal courts have boxed them in, and they are no longer free to legislate.
For over the past five months, federal judges have been blocking the enforcement of laws on partial-birth abortion that were enacted by the states: Illinois, Michigan, Ohio, Nebraska, Arizona. In all, the laws in eleven states have been challenged, and all of them have been either struck down or put on hold. By the time a federal bill is passed, the judges will have put in place several layers of arguments and precedents, all now casting the most serious doubt on the constitutionality of a federal ban. Those precedents will no doubt be cited by the opponents of the bill, as they stage their resistance and latch on to anything that even faintly resembles a moral argument.
For the most part, those laws in the states were carefully drafted, and while they offered their own variations, they all took as the core of their concern the ghastly procedure that has fixed the attention of the Congress and inspired a recoil in the country: A surgeon plunges a sharp instrument into the base of the skull of a child half-delivered, whose body is in the birth canal but whose head is still in the womb; the brains are then suctioned out so that the head can be collapsed and the child more easily removed in one piece. Most of these procedures are performed at five or six months into a pregnancy, and late enough in some cases that the child could survive a normal delivery.
The laws in the states have been confined, quite precisely, to this procedure of abortion; and yet the judges have claimed to find a disabling "vagueness" in what the legislatures have sought to forbid. And as they have warmed to their argument, the judges have made explicit what has been lurking all the while in the decisions of the Supreme Court: most notably, that birth marks no distinction of consequence for the law of abortion; that no fact, no evidence, about the state of the child even at the point of delivery has any standing if it is used to limit the freedom to choose abortion.
With a show of inventiveness, the judges have blocked every path for defending these laws on partial-birth abortions. But beneath the language of the decisions, a political message is being conveyed. The political class that forms the judiciary is making the point, in a steely way, that it will not brook even the slightest restriction on the "abortion liberty," which it is coming to regard as the first freedom. Yet, it seems to have gone unnoticed that the judges have also confirmed the political strategy that lay behind the legislators' effort to forbid partial-birth abortions.
Part of the purpose behind that strategy was to induce the partisans of abortion to defend abortion on the terrain of their hardest cases-not abortions after rape and incest, but the destruction of a partially delivered child. And now we find the judges doing precisely that: They tell us that we cannot legislate against abortions performed even on children partially delivered, with their feet dangling out of the birth canal. We cannot do that, according to the judges, because these abortions are indistinguishable from a large number of abortions that must remain legitimate. And so, in the Sixth U.S. Circuit Court of Appeals, Judge Cornelia Kennedy insisted that it might not always be so easy to distinguish these abortions from so-called D & E abortions (dilation and evacuation), where the child is cut up. …