Just in time for the presidential election, abortion may be headed again for the Supreme Court. In the wake of lurid hearings in Congress in 1995, 30 states have passed laws banning partial-birth abortion, a politically inflammatory but rarely used procedure. Judges have struck down the bans in two-thirds of the states and haven't interfered in the rest. The cases show how state legislatures, by focusing on an emotional sideshow, are ducking the question that both parties are afraid to face: Are there really circumstances in which a woman can be required to carry a viable fetus to term against her will?
In 1992, the Supreme Court said yes. The Constitution protects a woman's right to choose abortion before fetal viability, the Court held, but after viability the question of whether or not to ban abortion is up to the states. But the invitation to debate the legitimacy of post-viability abortion is something that extreme pro-choicers and pro-lifers have both refused to accept. (The pro-choicers reject any restrictions on principle; the pro- lifers don't have the votes to pass them in practice.) As a result, both sides have embraced the partial-birth diversion with a sigh of relief.
Most of the cases focus on a graphic but highly technical dispute: Do the laws in question ban only the partial-birth abortion procedure, known as dilation and extraction (D&X), or are they drafted so vaguely that they also ban the most common procedure for second-trimester abortions, known as dilation and evacuation (D&E)? I'll spare you the gory details, which tend to discourage clear thinking. Suffice it to say that the two procedures are distinguished mainly by whether the fetus is killed before or after it is removed from the uterus. Fetal viability begins around the end of the second trimester, and, in striking down the bans on partial-birth abortion, courts have concluded that the laws might forbid the D&E as well as the D&X procedure, thereby imposing an undue burden on a woman's constitutional right to choose abortion before viability.
At the end of October, in his opinion for the U.S. Court of Appeals for the Seventh Circuit, Judge Frank Easterbrook upheld partial-birth laws in Illinois and Wisconsin after construing them to prohibit only the D&X procedure. In the process, he usefully focused the constitutional and political questions. As a policy matter, the movement to ban the partial- birth procedure is a distraction, just as the effort to ban the electric chair as a form of cruel and unusual punishment--which the Supreme Court has just agreed to review--is a distraction in the death-penalty debate. By focusing on a graphic (and rarely used) procedure, abortion and death-penalty opponents hope to inflame the public and the courts, even though the practical and moral differences between the prohibited and the permitted methods of killing are murky, and it's not clear that a single life is saved as a result.
In an acerbic dissent, Chief Judge Richard Posner suggested that because the D&X and D&E procedures are medically hard to distinguish (the difference may depend on which way the fetus's feet are pointing), an effort to ban one and permit the other should be struck down as irrational. But this seems a little freewheeling: Why couldn't a rational legislator conclude that a ban on partial-birth abortions--like a legislative declaration that life begins at conception--is a symbolic act intended not to prohibit actual abortions but to express respect for the views of those who believe abortion is murder?
The stronger constitutional objection is that the Illinois and Wisconsin laws include an exception allowing the D&X procedure in emergencies during which the mother's life is at risk but make no similar exception for her health. This objection might seem decisive; in the Casey decision in 1992, the Supreme Court reaffirmed Roe v. Wade's holding that states are free to prohibit abortion after fetal viability as long as they make exceptions in cases where an abortion "is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Easterbrook, however, deferred to a Wisconsin judge who concluded, based on the testimony of one Dr. Giles, that the D&X procedure is never medically necessary to preserve a woman's health. In his dissent, Posner ridiculed "the dubious Dr. Giles" and noted that an Illinois judge had come to the opposite conclusion about the medical evidence.
If a court remains uncertain about whether a partial-birth law adequately protects women's health, what should it do? One possibility, as Posner suggested, would be to interpret the law's life exception to include health as well. But this exercise in judicial charity would thwart the wishes of the legislature, which apparently believes that a viable fetus's interest in life is more important than marginal threats to a woman's health. Another possibility would be to strike down the law and send it back to the legislature, which would then have a second chance to spell out which specific threats to a woman's health could override a viable fetus's interest in life. Balancing the interests of a viable fetus against the interests of its mother is a quintessentially legislative judgment about which the Constitution provides no meaningful guidance. Rather than usurping it, judges should force legislators to put themselves on record and accept the political consequences.
In the forthcoming constitutional battle, the Supreme Court may decide to clarify how much discretion legislators have in this explosive area. In 1997, the U.S. Court of Appeals for the Sixth Circuit struck down a partial-birth- abortion ban, noting that the Ohio law in question contained an exception for the mother's physical health but not her mental health. In the 1970s, the Supreme Court interpreted maternal health to include psychological and emotional well-being. Based on this broad definition, the Sixth Circuit predicted that today's Court would hold that a woman has a right to abortion whenever carrying the child to term would pose a serious threat to her mental health. If the Court agrees that the Constitution requires a mental-health exception to late-term-abortion restrictions, it will undermine the central holding of the Casey decision, which stressed that, after viability, the fetus's interest in life may trump the mother's potential distress.
In Roe v. Wade, judges acted like legislators. But in the partial-birth debate, legislators have been acting like judges-- condemning a particular procedure as cruel and unusual while refusing to prohibit medically indistinguishable alternatives. This serves the interests of the Republican Party, allowing state legislators to gesture symbolically toward anti- abortion abolitionists without necessarily prohibiting a single abortion. But, if it resolves the partial-birth sideshow, the Supreme Court should make clear that the political branches alone can decide precisely when a women may be forced to carry a viable fetus to term. By avoiding its error in Roe and requiring legislators rather than judges to legislate, the Court might even expose the weakness of the extreme pro-lifers. When legislators contemplate the march on Washington that would be triggered by abortion restrictions that actually affect women's lives, many Republicans may run in the opposite direction.