CHICAGO — A leading pro-lifer warned that a new battle over partial-birth abortion could open the door to a frightening precedent.
That precedent: a Supreme Court decision that would effectively extend a mother's “right” to kill her child outside the womb.
Douglas Johnson, director of National Right to Life, made his warning after a federal appeals court Oct. 26 upheld the constitutionality of Wisconsin and Illinois laws prohibiting partial-birth abortions.
A month earlier, another federal appeals court struck down bans on partial-birth abortions. This means the U.S. Supreme Court may have to decide the issue.
If the Supreme Court decided to strike down state bans on partial-birth abortions, it would be an expansion of Roe, Johnson said, because it would extend the moth-er's right to kill the child outside of the womb.
“This baby is mostly born,” Johnson told the Register. “You never said anything about that in Roe. They would have to expand Roe to include partial-birth abortions. I think that would be unacceptable to many Americans.”
The Oct. 26 decision on the Wisconsin and Illinois laws was made by the 7th U.S. Circuit Court of Appeals, which is based in Chicago.
In reaching the majority ruling, Judge Frank H. Easterbrook said that women have not been denied an abortion because of the law, and that other, safer forms of abortion were available. The judge drew a distinction between two types of abortion.
Partial-birth abortions, known as dilation and extraction, or D&X, involve delivering a child feet-first while leaving just the baby's head inside the mother. The abortionist then uses a scissors to slice the child's neck and then vacuums out the brain to collapse the skull in order to cause death and finish delivery.
A dilation and evacuation abortion, or D&E, occurs when the abortionist inserts a sharp instrument into the womb tearing the child into pieces. A vacuum is then inserted and the baby's parts are placed on a table to make sure a foot or a piece of skull is not still inside the womb.
‘We are shocked by the decision,’ said Planned Parenthood President Gloria Feldt of an appeals court ruling to uphold a ban on partial-birth abortions.
While in either case the abortion involves the death of a child, there is a fundamental legal distinction, because of Roe v. Wade. No matter how developed the child is, the state is under no obligation to protect her life until she is born.
“Birth is what matters” to the Supreme Court, said Johnson of National Right to Life. Under a partial-birth abortion, “the baby is deliberately pulled four-fifths across this plane where, according to Roe, she becomes a human.”
The 7th U.S. Circuit Court decided that Illinois and Wisconsin could defend the right of the child against this type of abortion because the child is being born.
Judge Easterbrook wrote in the majority decision, “It is this combination of coming so close to delivering a live child with the death of the fetus by reducing the size of the skull that not only distinguishes D&X from D&E medically, but also causes the adverse public and legislative reaction.”
Easterbrook continued, “Even for the class of women who seek late-second-trimester abortions, there is always one or more other safe methods of abortion in addition to D&X.”
Wisconsin Gov. Tommy Thompson immediately applauded the ruling.
“The partial-birth abortion is a gruesome, abhorrent way to take a life,” the Republican said. “There's no place for partial-birth abortions in Wisconsin, and I'm glad the court upheld our efforts to ban them.”
Abortion providers seemed to be caught off-guard by the court's decision.
“We are shocked by the decision,” said Planned Parenthood President Gloria Feldt. “However, we must be vigilant. Fundamental issues of privacy and individual civil liberties affecting all women throughout pregnancy are at stake.”
Johnson of National Right to Life said that the Supreme Court could uphold the ban on partial-birth abortions while maintaining the 1973 Roe decision.
“Ethically, we have never considered partial-birth to be worse than other abortions, which are also horrific,” Johnson said. “But the lawmakers looked at the law that the Supreme Court created and said, ‘At least a state should be able to protect that child — at least when the child is being born.’”
The State Next Door
In September, the 8th U.S. Circuit in St. Louis overturned bans on partial-birth abortions in Arkansas, Nebraska and Iowa.
The two separate court rulings have established opposing standards. In Illinois partial-birth abortion is a crime, but on the other side of the Mississippi River in Iowa the procedure is a constitutional right.
“You have an inconsistency in the federal court system — it almost demands a Supreme Court ruling,” said Johnson. The case might be heard before the high court during this term, he added.