Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

The Supreme Court and Partial-Birth Abortion

Stephen V. Monsma


April 27, 2007

Last week, a slim, 5-4 majority of the U.S. Supreme Court upheld a congressional ban on a certain type of late-term abortion. Opponents of the procedure call it partial-birth abortion. Supporters call it intact dilation and extraction (or evacuation).

This particular abortion procedure is highly controversial because it teeters on the thin line separating abortion and infanticide. It is hard to read Justice Anthony Kennedy's clinically exact description of the procedure in his majority opinion without feeling physically sick. In this procedure, he explains, the doctor delivers the fetus intact, except for his or her head, and then collapses the head both to make it easier to deliver the fetus intact and to assure that what is delivered is a dead fetus and not a living baby.

The Supreme Court decided that Congress's 2003 legislative ban on this kind of procedure did not violate the Court's earlier abortion decisions, including a decision in 2000 that ruled unconstitutional a similar ban enacted by the Nebraska legislature. The Court held that the congressional law defined the banned procedure more precisely than Nebraska had done, so a doctor would not run the danger of prosecution for inadvertently violating the ban.

The reactions of the leading Democratic presidential candidates and the major media outlets were revealing. Hillary Clinton, Barack Obama, and John Edwards all rushed to put out statements condemning the decision and claiming it was an attack on the freedom of women to make their own health decisions. None of the statements gave a hint that they saw abortion in general, or this abhorrent procedure in particular, as raising any morally troubling questions.

Similarly, almost all of the major media outlets mischaracterized the decision as one that, from their point of view, only concerns women's health. The New York Times, for example, editorially intoned that the decision means "giving the federal government power to limit a woman's right to make decisions about her health." It was not until one reached the third paragraph of the editorial that one learned that the case dealt with pregnancy and abortion. The value of the pre-birth human life never entered into the Times consideration.

Both sides to this controversy, however, are putting more emphasis on the partial-birth abortion issue than it deserves when abstracted from the full context of which it is a part. What is truly wrong with abortion is the taking of what can only be described as a human life, not the method that is used to take that life. Those of us who believe all human life has value and that justice therefore calls for public policies that protect pre-birth human life need to speak up clearly and insistently in this regard.

But if we stop there, we are in danger of making as much of a mistake as the Democratic presidential candidates and The New York Times did. They see the partial-birth abortion issue as involving only pregnant women's health and give no weight to the human life that is ended. But those who oppose abortion ought not to focus only on the life of the unborn child or--in the case of partial-birth abortion--the child that is in the process of being born, giving no weight to the health and other needs of women who may experience pregnancy under difficult circumstances.

Justice demands that both the unborn or being-born child and the mother be given their due in our nation's laws. Banning almost all abortions should be balanced by actions that include fixing our health-care system so that everyone has access to health insurance and to basic health care. Public policies should also provide adequate assistance to poor single mothers and their families, as well as job training and supportive services when they have chosen for life and against abortion. Steps such as these would help assure that our public policies are just--both for the unborn human life and for their mothers.

—Stephen V. Monsma, Research Fellow
    The Henry Institute, Calvin College


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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”