Dorf on Law

Mostly law-related musings by Cornell Professor Michael Dorf and some of his lawyer/professor friends

Thursday, November 09, 2006

More Thoughts on Partial-Birth Abortion Case

I wrote a column about this case a few weeks ago, which appears at this link. In the column, I compare the distinction the statute implicitly draws (between killing a second-trimester fetus when it is seconds from being born alive, on the one hand, and actually delivering the second-trimester fetus alive, on the other) as comparable to the distinction between physician-assisted suicide and removal of life support. Though the distinction – in both contexts – strikes me as weak, it evidently appeals to the Court, which may bode well for the continuing right to terminate a pregnancy by inducing labor prior to viability, if by no other method.

What I do not say in the column but nonetheless believe is that the distinction the statute explicitly draws, between “partial birth abortion” (when the abortion provider kills the fetus after most of it has exited the womb) and other second-trimester abortions (in which the provider kills the fetus while it is still inside the womb) is utterly arbitrary. In both kinds of abortion, the provider actively kills the fetus, and the only difference is where inside the woman the fetus happens to be at the time of death. The objective of the legislation is on its face to force the Justices and the public to confront the physical reality of later-term abortions, with which most people are understandably uncomfortable. The tragedy of it all is that the various assaults on abortion rights, including the passage of parental notification laws, which I discuss in an older column, pro-life protesters’ harassment of doctors and patients, resistance to morning-after pills and RU486, and opposition to sex education that extends beyond calls for abstinence have led to more of the late-term abortions that supposedly horrify everyone (including the devout proponents of the legislation). It seems, then, that the more successful the religious right is at posing obstacles to contraception and abortion, the greater the number of late-term abortions that occur. Of course, a person who holds the view that a one-celled pre-embryo is no different from a full-term fetus might not find this development particularly disturbing.

2 Comments:

  • At 11:33 AM, Blogger Derek said…

    I find it very strange that the Court would uphold a moral distinction between partial-birth abortion and inducing the delivery of a non-viable fetus (provided the fetuses are the same age in both examples), even given its decisions in the euthanasia cases. As you say in your column, Glucksberg and Cruzan are about how, and if, an individual can choose to end her own life -- neither legitimizes killing someone against her will, passively or otherwise.

    I guess there is a middle ground between voluntary and involuntary euthanasia: nonvoluntary euthanasia. We know from Glucksberg/Cruzan that the Court thinks the active/passive distinction is morally relevant with respect to voluntary euthanasia, do they also think the distinction is morally relevant when the consent of the patient/fetus is not possible (or knowable)? I don't see how they could, consistently, without also holding that one could passively kill a viable infant by, say, refusing to feed it, because a newborn is no more capable of consent than a fetus is. If that's right, then the moral distinction between partial-birth abortion and induced labor starts to look pretty mysterious.

    I guess your point is that it's not actually a well-reasoned distinction, but something the Court might try to hold on to in the face of some pretty vivid and dramatic imagery. I'll be curious to see if they actually try to make that reasoning explicit.

     
  • At 1:47 AM, Anonymous Anonymous said…

    "...the distinction the statute explicitly draws, between “partial birth abortion” (when the abortion provider kills the fetus after most of it has exited the womb) and other second-trimester abortions (in which the provider kills the fetus while it is still inside the womb) is utterly arbitrary."

    But the very crux of abortion rights are arbitrary, no? Why not allow the mother five minutes after birth before she can choose to kill the child? Why not give her a month? It seems like the basis of Roe v. Wade was "we're gonna draw the line somewhere, so we may as well go with this trimester system." Sure, it's arbitrary. But it's also arbitrary to say the fetus which is seconds from birth has no constitutional rights, but in the split second after birth it has full constitutional rights.

    So in light of Derek's statement that it's not a well-reasoned distinction, I wonder what does constitute a well-reasoned distinction. Where would you draw the line, and why (speaking in constitutional, rather than moral, terms)?

     

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