No one any longer contends, as Kate Michelman of NARAL did when initially confronted on the subject in the fall of 1995, that “there is no such thing as a partial birth” — in other words, that the hideous abortion procedure in question is an outright hoax perpetrated by the pro-life movement. At other times, during those earliest few months of the controversy, Planned Parenthood and the National Abortion Federation (NAF) were prepared to argue that partial birth is an unusually humane means of terminating a pregnancy — because before the skull is punctured by surgical scissors and the brains suctioned out through the wound, the unwanted child is always already dead or insensible from a pain-free overdose of the anesthesia administered to its mother. This neat theory, too, has by now disappeared from public debate. In 1996 and 1997, President Clinton sealed his vetoes of congressional partial-birth bans by indignantly insisting that in cases of fetal hydrocephaly, “the only way” a mother can avoid being ripped “to shreds” during labor and thus “losing the ability to ever bear further children” is to have the fluid-swollen head of her baby (which “couldn’t live” anyway) vacuumed down to size. But you don’t much hear this defense of the procedure any more, either.
All of these claims were demonstrably untrue even at the time they were made. Dr. Martin Haskell of Dayton, Ohio, the pioneer of partial-birth abortion, first described his innovation, in elaborate detail, to a 1992 meeting of the NAF. He did not mention using general anesthesia as an agent of fetal demise; in fact, a principal advantage of the technique, he pointed out, was that it did not require general anesthesia. Nor did Haskell pretend to choose the procedure out of case-by-case concern for the health of women who came to his clinic. Instead, he “routinely” performed partial-birth abortions on “all patients” between 20 and 24 weeks pregnant. Eighty percent of these abortions, Haskell told the AMA’s newsletter in 1993, were “purely elective.” The other 20 percent were for “genetic reasons” like Down syndrome that pose no risk to a mother.
Hydrocephaly, incidentally, President Clinton’s favorite justification for partial-birth abortion, is not, in fact, inevitably fatal to an infant. And no reputable perinatologist would ever think to treat the condition — on behalf of the infant or its mother — by suctioning the baby’s skull. The standard procedure is delivery by Caesarean section, followed by a neurosurgical shunt of fluid from the newborn’s brain. Where C-section is inadvisable, excess cranial fluid can be drained from the fetus, in utero, by a needle through the mother’s abdomen, and a normal vaginal delivery can then occur.
None of this incontestable evidence has ever mattered to pro-choice dogmatists, who still do not bother to acknowledge its existence. Falsehoods like the president’s hydrocephaly straw man helped blunt the campaign for a federal prohibition of partial-birth abortion (Clinton’s vetoes were both times narrowly sustained). The lies served their purpose, that is. So why, then, have they since been largely discarded by the liars? They have been discarded just as cynically as they were once advanced — simply because they are no longer convenient. For in recent years the partial-birth battle’s front line has shifted away from Congress to the federal courts. And in this new venue, the better to protect its weirdly beloved sub-genre of surgical sadism, the abortion rights movement has fashioned an altogether fresh set of distortions.
Which distortions, sad to say, have proved remarkably effective. Since 1995, more than half the nation’s state legislatures have managed to enact their own, local bans on partial-birth abortion. But all but seven of the bans have been formally challenged on constitutional grounds. And only once in all this mass of litigation has the trial judge upheld a state’s partial-birth restriction. In every other district-court ruling, the judge has accepted highly questionable evidence from abortion practitioners and their lawyers, confusingly applied that evidence to the Supreme Court’s already confused abortion precedents, and invalidated a worthy and popular law.
In 1995, for example, Ohio became the first state to bar partial-birth abortion — there defined as “purposely inserting a suction device into the skull of a fetus to remove the brain.” Ohio’s law contained a health exception. But the plaintiff — Dr. Haskell himself, as it happens — presented testimony concerning a practice previously unknown to medicine. Partial-birth procedures, it was contended, are not the only abortions in which a baby’s head is sucked empty. Sometimes the deed is done in dilation and evacuation (D&E) abortions, too, so as more efficiently to reduce and remove a dismembered skull from the womb. Since Ohio’s partial-birth ban thus “restricted” D&Es, as well, and since D&Es remain the most common and “safest” way to end a second-trimester pregnancy, the district court agreed with Haskell that the law raised an unconstitutional obstacle to lowest-risk abortion. Despite the law’s health exception. And despite the fact that there isn’t even a speck of authoritative medical evidence that brain-suctioning ever makes an abortion safer. On close inspection, this ruling made no sense. But it was later upheld by the Sixth U.S. Circuit Court of Appeals.
Similarly bogus complaints have defeated every other state’s partial-birth restriction in every other federal trial court. Every other state, that is, except Wisconsin. In Wisconsin, Planned Parenthood asked U.S. District Judge John C. Shabaz to find that the state’s partial-birth ban violated various constitutional principles never explicitly announced by the Supreme Court. No state may forbid the use of any abortion technique, no matter how extreme or ugly, on a pre-viable fetus, Planned Parenthood suggested. No state may forbid such a technique on a viable fetus without granting a health exception for any doctor who decides, all by himself, that partial birth is the best way to go. And no state may forbid a procedure whose described elements at all overlap with other kinds of abortion.
In the service of this last “vagueness” argument, Judge Shabaz was subjected at trial to hair-raising testimony by Planned Parenthood’s Wisconsin plaintiff physicians and their outside expert witness: Dr. Martin Haskell. No more, it seems, is partial birth a rare and humane form of abortion. Its defenders now admit that it is grotesque. And they assert that precisely because of its most obvious grotesquerie — the single-minded assault on an infant’s cranium — partial birth cannot be morally or legally distinguished from abortion techniques universally acknowledged to enjoy absolute constitutional protection.
Dr. Haskell told Judge Shabaz that he sometimes starts a partial-birth abortion, gets the baby’s body out in the air, wiggling around, all except the head, but for some reason can’t effect a brain suction. So instead he simply reaches through the mother’s cervix with forceps and crushes the baby’s skull — like a “folded piece of cardboard.” Which is also, Haskell claimed, what doctors performing standard second-trimester D&E abortions invariably do. After a D&E dismemberment, “usually the last part to be removed is the skull itself and it’s floating around free inside the uterine cavity . . . rather like a ping-pong ball.” A D&E abortionist has to crush that ping-pong ball, Haskell said; there’s no other way to get it past the woman’s cervix. Planned Parenthood’s logic, then: Partial-birth abortions must sometimes crush a fetus’s head; nothing that happens in a D&E abortion may be constitutionally restricted by any state; D&Es must sometimes crush a fetus’s head; so partial-birth procedures may not be constitutionally restricted by any state.
Bucking the national trend, Judge Shabaz, to his credit, was unimpressed by nonsense like this. He was persuaded instead by the testimony of Wisconsin’s expert witness — a distinguished (and otherwise pro-choice) perinatologist, Dr. Harlan Giles — that an infant’s skull need never be collapsed to achieve its complication-free delivery, even in an abortion. Shabaz, in short, was persuaded that partial-birth is never a medically necessary or even preferable method to end a pregnancy, and that states may consequently ban it without imposing an unconstitutional “undue burden” on women’s abortion rights. Other safe abortions will remain available in every circumstance, the judge determined; Planned Parenthood’s fear that Wisconsin’s law prohibits many different kinds of abortion is “a demon of their own creation.” Earlier this year, Shabaz upheld that law.
And just last month, in a 5-4 majority opinion by Judge Frank Easterbrook, the Seventh U.S. Circuit Court of Appeals sustained Shabaz. Easterbrook’s meticulously argued ruling has been poorly reported in the mainstream media. Most newspaper coverage has been directed instead — admiringly — to a characteristically flamboyant dissent by Judge Richard Posner. Posner likens the “dubious” Dr. Harlan Giles to a quack who believes that “vitamins are worthless.” Posner is captivated by an imaginary “consensus of medical opinion” that partial-birth abortions are a valuable life-and-health-preserving technique. Posner complains that the entire controversy has been “whipped up” merely to “dramatize the ugliness of abortions.” Abortions are not that ugly, he concludes. In any pregnancy, “as long as the baby remains within the mother’s body, it poses a potential threat to her life or health.” The baby is an enemy. Abortion is our best defense.
Needless to say, we are convinced that Posner is wrong and that Shabaz and Easterbrook are right. But the question remains: Will the Supreme Court agree with us? With last month’s Seventh Circuit ruling, the federal appellate courts have badly split over the constitutional issues raised by partial-birth abortion. The Supreme Court is now obliged to step in and resolve this split. But the current court retains a pro-choice majority and inherits a quarter-century of abortion precedents notable for loophole-ridden incoherence. All of which is a bad omen. The only long-term guarantee for an ordered and ethical national abortion regime, it therefore seems to us, is the election of a pro-life president in the year 2000 — a president who will appoint new, pro-life justices to the nation’s highest court.
David Tell, for the Editors
