Posner on Partial-Birth Abortion

As I noted yesterday (here), the Supreme Court's opinion in Gonzales v. Carhart draws some distinctions between the federal partial-birth abortion statute it upheld and the Nebraska statute it struck down seven years ago in Stenberg v. Carhart, but both the federal Act and the Nebraska Act share a crucial feature: neither contains a health exception. As Justice Ginsburg persuasively argues in dissent in yesterday's case, there's no plausible distinction between the Nebraska law and the federal law on that score; yet the majority purports not to overrule the 2000 decision. Well, one might ask, so what? What's so bad about the absence of a health exception? Justice Ginsburg gives a good answer, which I suppose will be widely read. Here I thought I'd let Judge Posner answer the question. Here's what he had to say in dissent in a 1999 case involving challenges to Illinois and Wisconsin partial-birth abortion bans:

Immediately the question arises why the Wisconsin and Illinois legislatures didn't try to come within reach of the cases that permit states to limit the right of abortion by making an exception for pregnancies that endanger the woman's health, the same exception they have written into their other abortion statutes. When pressed at argument, the lawyers for the two states could answer only that the exception is unnecessary. The lawyers were confident that such an abortion is never required to preserve a woman's health. They may be right, though I think not . . . . But if so, they are right only for today. Tomorrow, studies may show that, yes, there indeed are cases where a "partial birth" abortion is necessary to protect the mother's health, as many physicians believe. Tomorrow, then, these two statutes may be unconstitutional even by the lights of the majority opinion. Why would a state risk the early obsolescence of its statute by making it wholly dependent on ever-changing medical opinion, when to avoid this risk it need only have excepted those "partial birth" abortions, if any, that are necessary to protect the woman's health? If there are few such cases, the exception will rarely be invoked; if none, never. The answer is that opponents of abortion do not think there should be an exception for abortions that endanger a woman's health. Life, yes, but not health. These statutes, remember, are not concerned with saving fetuses, with protecting fetuses from a particularly cruel death, with protecting the health of women, with protecting viable fetuses, or with increasing the Wisconsin population (as intimated, surely not seriously, by Wisconsin's counsel). They are concerned with making a statement in an ongoing war for public opinion, though an incidental effect may be to discourage some late-term abortions. The statement is that fetal life is more valuable than women's health. I do not deny the right of legislatures to enact statutes that are mainly or for that matter entirely designed as a statement of the legislators' values. [citation omitted]. Nothing in the Constitution forbids legislation so designed. Many statutes are passed or, more commonly, retained merely for their symbolic or aspirational effect. But if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue. The statutes before us endanger pregnant women--and not only pregnant women who want to have an abortion. There is no exception for women whose physicians tell them you must have an abortion or die. It is true that if a "partial birth" abortion is necessary to save the woman's life, the statutes permit this. But if her life could be saved by another type of abortion, even one that threatened her health--that threatened to sterilize her or to paralyze her--then the physician would be committing a felony if he performed a "partial birth" abortion.

Well put, Judge P.