The Federalist Society


Abortion and the Courts

March 30, 2007

Wendy Long

Jennifer Brown


Questions and Answers:

Let’s start this electronic debate with the big pending issue now – the federal partial-birth abortion cases, Gonzales v. Carhart and Gonzales v. Planned Parenthood, which the Court will likely decide this June.

“Partial birth” denotes a late-term abortion in which the baby is dismembered in the womb and pulled out in pieces (“D&X”), or her skull is punctured and her brains vacuumed out so her body can be extracted (“intact D&E”).

Americans, through their elected representatives, have banned this. Under Roe and Casey, why can’t they do that, and what abortions CAN Americans legally choose to ban, if they can’t ban “partial birth”?


Let's start with first principles. Our Constitution protects individuals from unwarranted government intrusions into their personal and private domain, and in 1973 the Supreme Court recognized that a woman's decision to end her pregnancy before viability is part of that domain. This was not a new concept - abortion has been practiced in all societies throughout history, and the common law we inherited from England recognized that a woman could abort a pregnancy without penalty at least until "quickening" - the time when she reported feeling fetal movement. In constitutional terms, because pregnancy is physically onerous and invasive, forcing an unwilling woman to continue her pregnancy violates her liberty; and bearing a child is too private a decision to be mandated by the state rather than left to the woman whose own freedom, ethics and bodily integrity are implicated in the decision. While recognizing that government may assert an interest in protecting potential life, the Supreme Court has consistently held that a woman cannot be forced to sacrifice her health for the sake of the fetus, nor can the government dictate use of an abortion procedure that poses greater health risks for her than other available procedures.

The federal law now before the Supreme Court in Gonzales v. Carhart and Gonzales v. Planned Parenthood does not overtly prohibit any woman from obtaining an abortion; rather, it purports to regulate the method used for otherwise lawful, pre-viability abortion. The question posed is why Congress or states cannot ban a particular abortion method. The answer is simple: the method at issue is safer for some women than any alternative method. This is not my opinion but the finding of the lower courts. Developed to improve medical safety, this method takes less time and is less invasive for the woman; it is clearly as safe, if not safer, for all women as other relevant procedures; and it is definitely superior in safety for some women. There is no recognizable governmental interest in mandating that a woman who is having an abortion use a more dangerous method than the one she and her doctor have chosen, and that is why the Supreme Court should not hesitate to strike down this statute.

There is a second answer, as well. The members of Congress who wrote this statute chose to use a political term, "partial birth abortion," rather than a medical one for the method they wished to ban. Their definition of this method actually can encompass virtually any second trimester abortion, transforming what was promoted as a ban on one form of abortion into a potential ban on virtually all abortions after 12 weeks. Congress chose this broad definition, despite knowing that a similarly overbroad definition led the Supreme Court to strike down a similar Nebraska law in the 2000 case, Stenberg v. Carhart. This overbroad definition creates an undue burden on women's right to terminate pregnancy, and therefore violates the Constitution.

Are there assertions in my "first principles" that you disagree with?



Yes, I disagree with many of your "first principles."

Our Constitution protects individuals from being deprived of their "life, liberty, or property" without "due process of law." This is quite different from your contention: that the Constitution "protects individuals from unwarranted government intrusions into their personal and private domain."

You have to rewrite the Constitution to defend the proposition that the Supreme Court in 1973 "recognized" (after some 200 years) that the Constitution confers upon mothers a "right" to kill their unborn children. This long-unknown "right" was initially framed in Roe as a "privacy" right and later recast by the Supreme Court in Casey as a "liberty" right. (When you're making it up in the first place, you can just change it like that.)

What Roe actually did was to overturn the abortion laws of all 50 states, and wrest from the hands of the people of this country a social, political, policy decision that is properly theirs to make through the elected branches of government that are accountable to them. But since 1973, when it comes to abortion, "we the people" cannot choose what abortion policies we want, because nine unelected Justices of the U.S. Supreme Court are deciding for us. (Funny how proponents of abortion aren't much for "choice" when it means democracy.)

Roe, in this respect, is part of the illegitimate "substantive due process" jurisprudence that began with the Dred Scott decision in 1857, when the Court held that Congress had no authority to intrude upon the personal and private domain of slaveholders' "property rights" in the federal territories.

Lochner v. New York in 1905 held that the "liberty" clause of the 14th Amendment - the current source of the purported abortion "liberty" right - prevented states from regulating conditions, hours, and wages of workers. Dred Scott, Lochner, and Roe are all a piece of substantive due process invention: the Court making up legal doctrine to overturn duly enacted laws and give itself the power to make policy, taking it out of the hands of the people.

To justify this constitutional contortion, you invoke history, to make it appear that Roe was really not so radical. You say "abortion has been practiced in all societies throughout history." (I could object to that statement on relevance grounds, but it's so interesting, I won't.) So abortion has happened forever. So have murder, child abuse, wife beating, and slavery. These things are all bad for people. Especially for the one who is aborted, murdered, abused, beaten, or enslaved. But these activities are not even really particularly healthy for the aborter, murderer, the child abuser, the wife beater, or the enslaver. Accordingly, societies throughout history have sought to curtail these activities by enacting laws against them. America has led the world in advancing democracy, recognizing the dignity of human beings in ending slavery, and generally enhancing legal protections for the powerless. One would hope we could do better than prohibiting abortion only after "quickening," as you point out the common law did.

Also, that was long before science showed us the humanity of the unborn child, before we knew about fetal pain, before we could watch the unborn baby's heart beating weeks before most women even feel they are pregnant. One would hope that in this country, the law could advance to protect human life at least apace with the parallel advances in the world of science and medicine. Yet you argue that the very Constitution that has nurtured this civic and scientific development prevents us from doing so.

You say that Congress can't ban partial-birth abortions because it is "safer for some women than any alternative method." Chief Justice Roberts and Justice Kennedy exposed the weakness of that rationale at oral argument. The Chief Justice pointed out that if partial-birth abortion is safer because the child isn't dismembered in the womb, it would be safer still to deliver the child intact and then kill her, outside the womb altogether. Justice Kennedy asked if the attorney arguing for the invalidation of the partial-birth abortion ban was saying "that there is always a constitutional right to use what the physician thinks is the safest procedure." The pro-abortion attorney denied she was advancing such an argument. Justice Kennedy went on to state that "it must be true that there are some instances in which the state can prohibit a procedure even if it is the safest procedure." And the Chief Justice pointed out there was no evidence in the record establishing how much safer the partial-birth abortion procedures (as medically defined in the statute) purportedly are.

Many women find that taking care of newborns, or even toddlers, is far more physically onerous and freedom-robbing than being pregnant. If a woman's health suffers because of the burden of caring for a newborn - particularly a very sick one who cannot live without constant care - wouldn't your explication of the mother's liberty interest necessarily protect her decision to end the life of such a burdensome, health-robbing infant?



You asked whether, given the burden of caring for babies and toddlers, the constitutional liberty interest I have described as protecting women's right to choose abortion also protects a woman's decision to end a baby's life. The answer is, of course, no. This aspect of the liberty interest arises from the fact that pregnancy occurs within a woman's body. Before birth, the physical and other burdens of pregnancy fall exclusively on the pregnant woman. Once born, by contrast, care for the child may be shared, or even given over to others. That fact makes all the difference in the world. As the Supreme Court noted in Planned Parenthood v. Casey, "The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. [The State may not] insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role . . . ." Casey, 505 U.S. 833, 852 (1992).

A serious consideration of abortion has to acknowledge this distinction between the acts of a woman regarding a pregnancy that is wholly within her own body and the acts of one person toward another. For that reason, there is simply no comparison between abortion and the other acts you refer to - murder, child abuse, wife beating and slavery. Failing to recognize this distinction tends toward obliterating the experience of the pregnant woman, which is the last thing you want to do in discussing abortion.

Women's experiences are also quite invisible in another argument you suggest - that it takes scientific knowledge of fetal development to properly understand what an abortion is. Whether she sees herself as pregnant with potential life, developing life, an embryo, fetus or baby, every woman who has an abortion knows that if she does not, she will give birth to a baby - that is exactly why she is having an abortion. And more than half the women who have abortions have already given birth. To suggest that they don't know what they are doing is presumptuous, to say the least. (Nor is your science accurate. Regarding fetal pain, for example, a survey of available research in the highly respected Journal of the American Medical Association noted the lack of a sensory system to feel pain before 23-30 weeks gestation, and the absence of structures to transmit pain until even later. Virtually all abortions take place much earlier in pregnancy.)

As you point out, taking care of a baby and nurturing a child to adulthood is very hard work. In fact, a woman's decision to have an abortion is often the product of profound ethical and moral considerations, driven by how seriously she takes the responsibility of childbearing, and how important it is to her to fulfill it well. For the tens of millions of women who have had an abortion - about one in three American women - the Constitution's protection has allowed them to make that decision with dignity and safety, and, again quoting Casey, free from the "compulsion of the State."

Do you agree with the Supreme Court’s decision in Griswold v. Connecticut, 381 U.S. 479 (1965), that the Constitution protects the decision to use birth control against government interference, and if so, was the reasoning in Griswold correct or is there some other constitutional basis for its outcome?



Abortion advocates love to talk about choice, privacy . . . and Griswold. Anything but abortion. Griswold had nothing to do with abortion, of course – and it has even less to do with it since five Justices in 1992 recast the purported basis for abortion from a “privacy” interest in Griswold and Roe to a liberty interest in Casey, as I noted previously.

What do I think of Griswold? It was unnecessary at the time it was decided, and it is even more unnecessary now, because there isn’t a majority of citizens in any state in the Republic, nor in the country overall, that would enact laws banning the use of contraception.

It is clear from reading the various opinions in Griswold seeking to justify its holding that what really moved the Court was the Connecticut statute’s criminalization of an aspect of the traditional marital relationship. The opinions in the case reveal that a 7-2 majority of the Court – Chief Justice Warren, and Justices Goldberg, Brennan, Harlan, White, Black, and Stewart – believed that Griswold’s holding was at best limited to laws seeking to criminalize aspects of marriage, not all aspects of sexual morality, and, a fortiori, not the practices of abortionists. See, e.g., 381 U.S. at 498-99 (Goldberg, J., concurring, joined by Brennan, J., and Warren, C.J.) (“Finally, it should be said of the Court’s holding today that it in no way interferes with a State’s proper regulation of sexual promiscuity or misconduct.”) (citing with approval Poe v. Ullman, 367 U.S. at 533 (Harlan, J., dissenting on standing grounds) (“Adultery, homosexuality and the like are sexual intimacies which the State [constitutionally] forbids.”)).

Moreover, the factual basis for Griswold itself was completely contrived, and no wonder, since there were not in 1965, nor are there today, “bedroom police” hiding under people’s beds seeking to monitor their use of birth control.

In short, we didn’t need to make a constitutional issue out of contraception. The Constitution of the United States was not designed to provide a constitutional or judicial remedy for every social problem or concern. It says nothing about contraception, just as it says nothing about abortion. The Framers understood that whatever laws were passed on subjects not addressed by the Constitution would reflect the will of the people.

The main problem with Griswold is that it has been twisted to justify all manner of constitutional mischief that it is unlikely even the Griswold majority would have agreed with: the idea that the Constitution prevents parents from knowing that their young teenage daughters are having abortions, that it prevents intelligent women from receiving medical, factual information about the abortion procedure so that they can make an informed “choice,” etc.

The big difference between Griswold and Roe is that Griswold did not set off a generation of anguish and protest about contraception laws being overturned. The issues in Griswold regarding contraception and marital privacy are not on the table to be revisited. No one is out there trying to pass laws against birth control (except for the kind of “birth control” that kills a human life already in being). The decision in Griswold is not frustrating democracy from operating. But Roe and Casey are. Legally, politically, and socially, there is an overwhelming need to restore abortion policy to the democratic process.

To paraphrase Justice Stewart’s dissenting opinion in Griswold, if a majority of a state’s population agrees with you that a woman’s ability to make an unfettered abortion decision truly outweighs the life of a baby, then that majority can freely exercise its constitutional rights and persuade its elected representatives to enact liberal abortion laws.

Which of the following reasons for abortion constitute "health of the mother" reasons or are otherwise constitutionally protected: unready for responsibility of child, can't afford baby, concern about how a baby would change her life, baby has Down syndrome, baby carries gene for homosexuality?



I assume your question concerns the conditions under which the Constitution protects a woman's ability to obtain an abortion in the last trimester of pregnancy after there is a chance of fetal survival outside the womb. The constitutional doctrine on this is quite clear: as the Supreme Court reiterated in Planned Parenthood v. Casey, 505 U.S. 833, 879 (1992), states can prohibit abortion after fetal viability "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health" of the pregnant woman. The Court has ruled that, in general, a state can ban post-viability abortions in order to promote its interest in potential human life. But the Constitution does not permit that interest in potential life to outweigh the most vital of a woman's interests in the "preservation of [her own] life or health." The determination of when a post-viability abortion is "necessary" to preserve the woman's life or health is ultimately left to the "appropriate medical judgment" of the abortion provider.

As you would expect, it is extremely rare for a woman to seek an abortion in the third trimester of pregnancy. There is almost nowhere to get an abortion at that stage, either - in 2001, third trimester abortion was available at all of 11 hospitals and 19 clinics in the entire country. While nearly 90% of all abortions are performed in the first trimester, perhaps .0004% (4/100 of 1%) are performed in the third trimester. (The federal Centers for Disease Control data do not track post-viability abortion so exact information is not available.)

Most states make post-viability abortion a crime, subject only to the constitutional limits noted above. Do you think a doctor would risk criminal prosecution and the loss of his or her medical license to perform a post-viability abortion for the reasons you have offered - or that a jury would excuse it as necessary to preserve the woman's health? One study I reviewed of later abortions stated that the sole reason for the third trimester abortions reported in that particular study was fetal demise. Next to hypotheticals about a third trimester abortion based on a (nonexistent) gene for homosexuality, the reality is pretty harsh. It is hard to hold it against a woman that she wants a dead fetus removed from her body - or to criticize a doctor for doing just that.

The actual reasons why women have abortions even in the second trimester are described in an amicus brief filed in Gonzales v. Planned Parenthood, which is available here. Even a short time spent reading the brief brings to light the highly individual medical circumstances that pregnancy can present, which make the exercise of appropriate medical judgment rather than legislative fiat the only tolerable approach to these situations. The religious freedom dimension of constitutional protection for abortion is apparent as well, as the brief gives glimpses into individuals wrestling with their most profound religious and moral convictions as they consider how to respond to their circumstances.

You make many references to the "unborn baby" as existing even before the woman knows she is pregnant. Do you believe that a legally cognizable person exist from the moment of conception, and if so, doesn't the Constitution require that all abortions be prohibited?



Yes, an unborn baby is a member of the species homo sapiens who is in utero: a legally cognizable person who exists from the moment of conception. This person can be protected by the law in many ways, for example, fetal homicide statutes. A murderer who kills a pregnant woman and her unborn baby commits double homicide. The baby is not part of the mother's body, nor the mother's property. She is a separate "person." And her personhood does not depend on whether she is wanted or not. The killer is guilty of double homicide even if he killed the mother and the unborn baby while they were on their way to the abortion clinic.

The Constitution, however, does not speak to the issue of abortion one way or another. Until Roe v. Wade erroneously disrupted the Constitution's plan of self-government, citizens of each state could determine the degree to which they want to criminalize the killing of unborn persons through abortion statutes, just as they decide the manner in which they want to criminalize the killing of born persons through murder statutes. The Constitution doesn't require that all abortions be prohibited, nor does it require that all murders be prohibited.

Unfortunately, Roe v. Wade made such a mess of the law on the constitutional meaning of "person" that it is not only tiny members of the species homo sapiens who suffer; the majesty and power and rational force of American law also suffer, to the detriment of all who respect it and look to it for guidance and teaching. Justice Blackmun in Roe expansively held that the constitutional right to privacy is broad enough to encompass a woman's decision to abort a baby. To do this, he thought that he had to engage in the most literalistic and narrow construction possible to decree that unborn human beings are not "persons" under the 14th Amendment.

The constitutional "personhood" ruling is, like the rest of Roe, judicial fiat in search of a rationale, and - again, like the rest of Roe - it comes up woefully short. Blackmun reasoned (being charitable with this term), first, that the other uses of "person" in the Constitution apply only postnatally. As John Hart Ely noted, Blackmun "might have added that most of [the Constitution's clauses] were plainly drafted with adults in mind, but I suppose that wouldn't have helped." Second, Blackmun asserted that "throughout the major portion of the nineteenth century prevailing legal abortion practices were far freer than they are today . . . ." 410 U.S. at 158.

Tellingly, however, the Court had construed the word "persons" in the Constitution only one other time. In 1886, it held that a corporation - a fictional, nonhuman entity - is a "person" entitled to equal protection and due process of law. Corporations don't exactly fit the way "person" is used elsewhere in the Constitution; they can't be fugitive slaves, or senators, or presidential electors, for example. Blackmun ignored this analytically, as well as the 1968 Levy v. Louisiana ruling upholding the constitutional rights of illegitimate children, in which the Court reasoned, "We start from the premise that illegitimate children are not 'nonpersons.' They are human, live, and have their being. They are clearly within the meaning of the Equal Protection Clause of the Fourteenth Amendment." 391 U.S. at 70.

As for Blackmun's other justification for his decree that the unborn are not constitutional "persons," it's flatly wrong. In fact, while the 14th Amendment was pending in Congress and the states were debating ratification, almost all the states revised their abortion statutes from the common law protection of the unborn only after "quickening" to conform to advances in the scientific understanding of the beginning of life. The medical profession rejected the "quickening" doctrine and accepted the science that a new human life begins at conception. The American Medical Association successfully lobbied most states to protect unborn life from conception by criminalizing all abortions. Accordingly, it makes little sense that the very state legislatures that were enacting these laws had a different understanding as they ratified the 14th Amendment.

In sum, Roe was clearly wrong in rejecting the fact that the unborn baby is a constitutional "person." Equally clearly, the Constitution leaves it to We The People to determine how the law shall protect such persons, without interference from unelected judges.

Under the Doe v Bolton definition of "health," which you correctly suggest gives unfettered discretion to the abortionist as to whether to perform a post-viability abortion, how could an abortionist be successfully prosecuted for violating a "health" exception that on its face constitutionally mandates that abortion be allowed until the moment of birth if the mother simply asserts a financial, familial, or emotional reason, having nothing to do with physical "health"?



Your insistence on an extended discussion of post-viability abortion, a subject that is irrelevant to 99.9996% of abortions, is peculiar, given that the states' ability to ban abortion after viability has never been in question, either before or after Roe v. Wade.

I do not want to belabor the points made in my last answer. I take issue, however, with the premise of this question. Neither I nor the law suggests that doctors (is the term "abortionists" intended to convey contempt?) have "unfettered discretion" to perform a post-viability abortion. To the contrary, there are very substantial restrictions on that discretion - to repeat, states can, and do, criminally prohibit abortion after fetal viability "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health" of the pregnant woman. Planned Parenthood v. Casey, 505 U.S. 833, 879 (1992) (emphasis added). While I object strenuously to the suggestion that women seek abortions for trivial reasons, I must also point out that, whatever the woman's reason, it is the doctor's professional medical judgment that is tested under the law. The notion that "necessary, in appropriate medical judgment" is an empty phrase when applied to physicians' conduct (including their responses to patients' requests) is ludicrous. Whether a doctor has exercised appropriate medical judgment in any area of medical practice is tested daily in malpractice cases in courts across the country. In the particular area of abortion, a doctor who performed a post-viability abortion that did not meet this standard would be subject to criminal penalties, as well as state licensing authorities' disciplinary procedures.

While it is anti-choice dogma that a woman can assert any old reason to get an abortion right up until birth, this simply is not true. Reading Doe v. Bolton, 410 U.S. 179, 192 (1973), which you rely on for its reference to physical, emotional, psychological and familial factors as bearing on "health," reveals that its subject matter is not post-viability abortion. Rather, the referenced passage was intended to show that a Georgia law that criminalized any abortion except when "based upon [a physician's] best clinical judgment that an abortion is necessary," Doe, 410 U.S. at 191, was not overly restrictive, because the physician's medical judgment could take into account all the factors relevant to a woman's well-being when deciding whether to permit her to have an abortion. Doe Bolton drew on United States v. Vuitch, 402 U.S. 62 (1971), again, a case not about post-viability abortion, but about a law that criminalized all abortions except when necessary to preserve a woman's life or health.

In short, the "constitutional mandate" you posit simply does not exist. A prosecution under a state law prohibiting post-viability abortion would have to prove that, whatever the asserted reason, the abortion was not "necessary, in appropriate medical judgment," to preserve the woman's health. This would be easy if your hypothetical third trimester abortion for financial reasons ever existed. Physical health, however, is not the only relevant consideration. A prosecutor would face an uphill battle proving that a post-viability abortion undertaken because a woman would otherwise have to carry to term a fetus doomed to die just before or after birth was not "necessary, in appropriate medical judgment" to preserve her mental health.


Given the Constitution's Equal Protection Clause, if you were correct that a legal person came into existence at the moment of conception, why wouldn't the states, which all prosecute the murder of persons, be constitutionally compelled (a) to prosecute abortion as murder and (b) to equally penalize the woman who had an abortion and the doctor who performed it?



First, about the term "abortionist": it was intended to be merely descriptive. See Merriam Webster's Collegiate Dictionary (10th ed.) (abortionist is "one who induces abortions"). The job of a cardiologist is to address heart ailments, the job of a dermatologist is to treat skin problems, and the job of an abortionist is to ensure that the unborn human being in the womb is successfully killed, in violation of the Hippocratic Oath. That's probably why abortionists have always been the dregs of the medical profession, many of them actually former M.D.s who have lost their license to practice real medicine. Moreover, abortionists need not even be M.D.s, which is why your use of the word "doctor" is inaccurate. "Abortionist" is simply accurate. It is what they do. If abortion is such a boon to women, it's interesting that you assume there is something pejorative about the term.

As to your Equal Protection question, that's simple. The Equal Protection Clause requires that all persons situated equally be treated equally. Certainly a pregnant woman facing the tremendous physical, mental, emotional, or other burdens you describe is not equally situated with an abortionist, who stands to profit from her plight and in some cases even misleads her in order to do so, by misrepresenting the risks an abortion poses to her, the humanity of her unborn child, and the options that she has to avoid an abortion. The abortionist and the mother are not at all equally situated, and the abortionist is the one who does the actual killing. For the past 35 years, the pro-life legal effort has never endorsed criminalizing the woman who seeks an abortion, and there is nothing in the Constitution that requires the laws to do so.

Yes, the states all choose to prosecute the murder of persons, because the great majority of Americans in all 50 states wish to do so. Many laws make distinctions based upon the age of persons - children, teens, and adults - and they do not violate the Equal Protection Clause because those age-based distinctions are reasonable. A law that makes distinctions based on age - as opposed to race - need have only a rational basis to sustain it constitutionally.

You raise an interesting question as to whether there ought to be perfect congruence between "human being" and "person" for purposes of the 14th Amendment, such that the unborn would be a suspect classification under the Equal Protection Clause. (Surely it is a less creative legal argument than those you deploy for a living every day in the name of the 14th Amendment.) The fact is, for the almost 200 years of our republic before Roe v. Wade, no one thought that the constitutional legitimacy of laws criminalizing abortion depended upon the unborn being recognized as "persons" in the 14th Amendment sense of the term.

It has never been an essential part of the pro-life legal argument (although it is an argument that some pro-lifers make) that the 14th Amendment's concept of "person" should extend to the unborn. Rather, the bedrock pro-life legal argument is that the 14th Amendment's concept of "liberty" does not - by virtue of any constitutional text, principle, or even intent - legitimately extend to a "right" to abortion.

After the survival in Florida last week of a 21-week little girl, viability moves yet earlier. Is this good, bad, or indifferent to you? Should the law presume such a baby can't survive, or should there be a legal presumption of viability, if we aren't sure?

Is a Down Syndrome diagnosis of a 21-week fetus (assume no health threat to the mother) sufficient reason for a constitutionally protected abortion?



Your assertion that "viability moves yet earlier" because a single infant who was born after 21 weeks 6 days gestation and then spent four months in intensive care survived to leave the hospital (with iffy chances of reaching age 1), doesn't square with reality. Medical decision-making is always informed by experience over many cases, not the occasional "medical miracle." Moreover, as this article suggests, see Long-term Prospects Vary for Premature Babies, Omaha World-Herald, Feb. 25, 2007, the underlying premise that viability is on a downward trend toward ever fewer weeks of gestation is not shared by the medical profession, nor are extremely early births without consequences. See Deanne Wilson-Costello, et al., Improved Survival Rates with Increased Neurodevelopmental Disability for Extremely Low Birth Weight Infants in the 1990s, 115 Pediatrics 997 (2005). But whatever the future holds, existing abortion law accommodates it by permitting states to restrict abortion after viability.

Nor should a single birth give rise to a rigid legal presumption of viability at 22 weeks. One birth does not redefine the fetal age aspect of the viability determination. Moreover, viability depends on multiple factors, and even then, it is no guarantee of survival, but only an assessment of favorable odds. Individual medical determinations are the province of physicians, not legislators.

Your last question points to where adherents to constitutional protection for the abortion decision, like me, and opponents, like you, part ways. I am profoundly grateful that our Constitution sets limits on the ability of you, me, or the government to dictate to any family whether to bring a child into the world -- whether pregnancy has begun, is in its seventh week, or 21st, with or without a diagnosis of Down's syndrome. How can the law adequately account for the variety of circumstances and belief systems that an unwanted or troubled pregnancy brings into play, except by recognizing the deeply personal, religious, and individual nature of these decisions and protecting them from the will of the masses? Isn't it enough that states can impose "counseling" clearly designed to express disapproval of abortion, and medically hazardous waiting periods, on women seeking abortion, as well as parental consent or notification requirements on minors (measures that, ironically, actually increase the small fraction of later abortions)?

The Supreme Court's jurisprudence on the substance of liberty protected by the Fourteenth Amendment that you so readily dismiss protects many basic freedoms that Americans hold dear - not only the right to make personal decisions about sexuality, contraception and childbearing, but also about marriage (Loving v. Virginia; Turner v. Safley), procreation (Skinner v. Oklahoma), family relationships (Moore v. East Cleveland), the education of children (Pierce v. Society of Sisters; Meyer v. Nebraska) and other choices that express and, in turn, shape our very beings. As the Supreme Court wrote in Casey, "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment." Where you see crass imposition of judicial will, I see a deep and abiding commitment to the principle that the Constitution limits the reach of government power into our private lives.

Baseless slurs against doctors who perform abortion aside, in a legal regime that classified abortion as murder, why should an adult woman who voluntarily presented herself to a doctor and solicited the doctor's assistance in aborting her pregnancy not be subject to criminal penalties under standard principles of accessory, accomplice and co-conspirator liability? What if she lied to the doctor to induce his cooperation? And why should the state be without recourse against the woman who self-aborted?



Your question is premised on the hypothetical, and unrealistic, contingency of "a legal regime that classified abortion as murder." If the Court had not fairly recently in our history prevented it, abortion could be regulated to protect both the mother and the unborn child in many ways, none of which involve classifying abortion as murder. That is not what the abortion legal battle is about.

Where the abortion legal battle stands right now - and indeed, where it has stood for 34 years since Roe v. Wade - has nothing to do with classifying abortion as murder. Rather, it involves the highly successful assault, by you and your comrades in the "pro-choice" legal movement, on the efforts of citizens in all 50 states to govern themselves by implementing laws to protect the lives and health of women and of unborn children. These modest measures you fight to quash include banning partial birth abortion, requiring that women be given accurate medical information about fetal development and health risks of abortion, requiring parental notification or consent for minor teens who get abortions, etc.

These laws have nothing to do with classifying abortion as murder. Indeed, many of them don't even prevent abortion, but just regulate aspects of it - and still you insist that the Constitution doesn't permit citizens to enact such laws. It is interesting, however, that the one nationwide poll by a major news organization - not a pro-life interest group - that asked the question found that 57% of Americans believe that abortion is murder, including "even about a quarter of the strongest abortion rights supporters." See Elizabeth Armet, Poll Anaylsis: Americans Lean More Conservative on Social Issues, The Los Angeles Times, Jun. 18, 2000. It is also interesting to note that the prominent early feminists such as Susan B. Anthony referred to abortion as "child murder." See The Feminist Case Against Abortion , available on the Feminists for Life website.

But to answer your question directly: if the citizens of a state decided to classify abortion as murder - not just morally, but for purposes of the state criminal code - then I suppose that an adult woman who voluntarily presented herself to a doctor (or other abortionist) and solicited the assistance of the doctor (or other abortionist) in killing the child in utero could hypothetically be subject to penalty under standard principles of accessory, accomplice, and co-conspirator liability, depending upon how those were defined by statute in the state in question. Please note that this would require: (a) for the citizens of the state in question to support the requisite changes in the criminal code to make this possible, (b) for prosecutors to decide to exercise their prosecutorial discretion to pursue the women rather than just the abortionists themselves, and (c) for a jury to decide to convict the woman instead of just the killer of the child. In this hypothetical world, the state would not be "without recourse" to pursue a woman who herself became the abortionist, subject to the same significant steps just noted. I don't think the further hypothetical of a woman "lied to the [abortionist] to induce his cooperation" would change this, and I'm not sure what lie she could tell that would be material to anything the abortionist was doing, if he relies upon his own "medical judgment."

The general thrust of your question again invites me to endorse the use of criminal sanctions against the mothers of aborted children, which I again decline to do, for the reasons stated before. It is reasonable in our representative democracy for citizens to conclude that abortion hurts women as well as children, that women are victims of abortion too, and that those who would profit from the plight of women with difficult pregnancies are the ones against whom the sanction of the law should be brought.

To address a few recurring points during our debate:

    1. Post-viability abortion: I raise this issue to show the extreme to which abortion advocates have contorted the law and removed it from the normal democratic process. It is not an insignificant issue, either in legal or practical terms. Precise statistics are not available on post-viability abortions, but your use of the third trimester (28-40 weeks) as an indicator of viability is a legal and medical anachronism. Today, occasional babies are viable at 21-22 weeks, and almost all babies are viable at 26 weeks. Taking the best CDC and Guttmacher Institute (arm of Planned Parenthood) data available, we know that somewhere between 3,000 and 18,000 (and probably much closer to the high end) viable children are aborted each year in our country. Yes, post-viability abortions are a small percentage, but of what? A huge actual number: there are around 1 million abortions per year in the U.S. -- even more in some of the 33 years since Roe. Whether 99,000 or 594,000 viable babies have been killed by abortion since Roe, it is far more innocent Americans than were lost on September 11, 2001. Your dismissal of this tragedy, and the current distortion of constitutional law that permits it, runs counter to the first reason American government was instituted: to protect "life."

    2. "Potential life": the use of this term, by you and by the Roe majority, reflects a failure of reason, upon which the law depends to operate. There are two questions that our rational faculties must answer: (1) Is the unborn child human or subhuman? (2) Is the unborn child alive or dead? The unborn child is unmistakably human, and unmistakably alive. (Your bizarre argument about removal of dead fetuses from the womb has nothing to do with abortion, if the fetus died naturally and was not killed as part of the abortion itself. "Abortion" is a procedure, in CDC's language, "intended to terminate a suspected or known intrauterine pregnancy and to produce a nonviable fetus at any gestational age.")

    3. "Health": I focused on this issue because abortion law has been rendered essentially meaningless by the vague and expansive notion of a woman's "health" as justifying abortion at any stage of pregnancy. First, it is a fact that there is almost no actual "health" condition that modern medicine cannot manage during pregnancy. Yet this "health" exception in abortion law has come to devour all abortion rules that Americans attempt to legislate. Roe decreed that abortion could not be restricted at all in the first trimester, could be regulated in the second trimester to protect the woman's health, and could be prohibited in the third trimester to protect the baby's "potential life" after viability, "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." 410 U.S. at 165. The Court ruled that Roe and Doe are to be read together, and Doe defines the woman's "health" as "all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the well-being of the patient." 410 U.S. at 192.
    4. The Supreme Court in Thornburgh, as well as various lower courts, have since made clear that laws restricting post-viability abortions are toothless because of this "health" exception. Your protestation that the facts in Doe and Vuitch did not involve post-viability abortions is irrelevant: it is incontrovertible that the expansive "health" definition these cases spawned has been applied by the courts to post-viability abortions, with your side leading the charge for them to do so. Abortion must be permitted for all nine months of pregnancy, for any reason, in this country. Why? Because if a woman wants an abortion, she will be upset if she doesn't get it, and this is all the abortionist needs: in his judgment, the abortion is "appropriate." I do not claim that abortionists are skirting the law. I am reporting the state of abortion law and practice in this country, and there is no - repeat, no - practical limit on abortion, because of the "health" exception. Has even one woman been turned away from an abortion clinic because she did not qualify for a "health" exception under a post-viability abortion ban? Has even one abortionist been prosecuted for an improper "health" justification of an abortion?

      Your analogy to medical malpractice is inapt: the only medical malpractice prosecutions that occur in the abortion context are when women are killed or maimed by abortionists. As long as the abortionist kills the baby without hurting the woman, no malpractice claims are brought asserting that he aborted a viable baby without a sufficient "health" reason to do so. So yes, the term "necessary, in the appropriate medical judgment" is an "empty phrase." But don't take my word for it: as Justice Kennedy observed in his dissent in 2000 in Stenberg v. Carhart: "[a] ban which depends on the 'appropriate medical judgment' of Dr. Carhart is no ban at all . . . . This, of course, is the vice of a health exception resting in the physician's discretion." 530 U.S. at 972.

       

In sum, I think you have identified our fundamental difference: you are "grateful that our Constitution . . . protect[s] . . . [the ability of women to have abortions] from the will of the masses." What you call "the will of the masses," I call representative democracy. "The government" here is not a totalitarian regime, but a regime of self-government. When citizens, freely and through lawful processes, choose to protect the lives of humans (both women and unborn children), by regulating or restricting abortion, they are governing themselves.

If you want to argue for a permissive abortion regime in America, our Constitution allows you to do so. But under our Constitution, you must persuade more than just five Supreme Court Justices. You have to persuade your fellow citizens and the elected representatives of the people that permissive abortion is ethical, humane, and wise social policy. If you are right, and public opinion is on your side, then "the will of the masses" will support an abortion policy as permissive as the one the Supreme Court has erroneously forced upon us, acting improperly as a super-legislature (and, in a sense, as a kind of national abortion control board) rather than the judicial body our Constitution created it to be.



"Griswold has nothing to do with abortion." (Long Answer 2.)

Griswold v. Connecticut decided that the Constitution protects from government interference the decision to obtain and use birth control. While Wendy Long apparently does not agree with this decision, acceptance of Griswold is extremely widespread and even now-Justice Samuel Alito could not bring himself to openly reject its holding during his confirmation hearings.

Why bring up Griswold again? Because contraception and abortion have everything to do with each other. Simply put, both are expressions of the exact same very widespread and deeply human commitment to limit childbearing. Contraception is an attempt to limit childbearing by preventing conception, while abortion is an attempt to limit childbearing by aborting pregnancy after conception. This is not an either-or situation: about half of the million or so U.S. women who have an abortion in any given year were using contraception during the month when they conceived, so abortion is often a response to a failed attempt at contraception. In fact, on average, American women spend about five of their fertile years pregnant, trying to conceive or postpartum, and about thirty of those years trying, with their partner, to avoid pregnancy. The failure rates of contraceptives as they are actually (i.e. imperfectly) used are surprisingly high - about 19% of women using some form of contraception will have an accidental pregnancy over a two year period. And even "perfect" use failure rates of 1% or 2% for the most effective contraceptives translate into a very large number of unintended pregnancies when applied to millions of women over decades of time. (For sources, see Heather D. Boonstra et al., Abortion in Women's Lives (Guttmacher Institute 2006))

Why should these nitty-gritty facts and figures matter to the law? The answer lies in how and why our Constitution protects the right to use contraception. Some think that the Griswold Justices' reliance on several grounds - the right to privacy, the liberty protected by the due process clause, the Ninth Amendment's reservation of unenumerated rights to the people - betrays some underlying weakness in its holding. In my view, however, this simply reflects the magnitude of the rights Griswold protects. Freedom to make conscious choices about childbearing without governmental interference implicates multiple constitutional protections. The right to privacy and the guarantee of fundamental liberty are two of these. Another - not mentioned in Griswold - is religious freedom, because the belief that it is morally wrong to engage in nonprocreative sex is a religious opinion that cannot be forced by the government on those with other, or no, religious beliefs. Perhaps the most fundamental constitutional right protected by Griswold, though not even alluded to there, is the equal protection guarantee. Gender equality appears nowhere in the opinion, which predates by several years the Supreme Court's first application of the equal protection clause to any sex discrimination claim (in Reed v. Reed, 404 U.S. 71 (1971)). Yet the full impact of a contraception ban can only be apprehended by examining its impact on women.

A contraception ban subjects women to the health risks of multiple, closely spaced pregnancies. It denies women's moral and religious freedom, robbing them of the authority to effectuate their most profound beliefs about the morality of bringing children into the world they are unable to care for. In the memorable words of future Justice Ruth Bader Ginsburg, written in the North Carolina Law Review in 1985, "Also in the balance is woman's autonomous charge of her full life's course . . . her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen." If the Constitution provided no protection to half the citizenry against such damaging effects, it would be of very diminished value to us all. Ms. Long might be the first to point out that in fact the Constitution did tolerate bans on birth control (the Comstock Act and state equivalents) for many decades without the sky falling in. But if women were still under the legal regime that then controlled, both she and I would be living much different, and much narrower lives today.

Exactly the same values that are secured by constitutional protection for contraception are secured by constitutional protection for abortion. To begin with religious freedom, the anti-choice movement has devoted great energy over the last thirty years to marking a sharp distinction between the pre-conception germs of life that are egg and sperm cells and the post-conception germ of life that is the zygote, which, under favorable conditions, implants in the uterus, becomes an embryo and then a fetus and is finally a born child. But acorns simply are not oak trees, and the decision to ascribe to human life in its earliest stages a moral or legal status that is equal to the born human is based on faith, or philosophy, not on fact. Nor, on examination, is this conviction widely shared. Consider that there are an estimated 500,000 frozen embryos left over from in vitro fertilization treatments in the U.S. alone. Should they be guarded against destruction by the police? Think of how differently an early miscarriage is regarded compared with a baby's death at three months. Even Ms. Long says in one breath that the unborn are legally cognizable persons from conception but in the next suggests that states banning abortion might have lower penalties for their "murder" based on their age.

As with contraception, much more is at stake than First Amendment freedoms. Women have abortions for exactly the same reasons that they use contraception: not because they are hapless victims, as Ms. Long would have it, but because they consider it their duty and their right to give birth only when they can care for a child. For millions upon millions of American women, whether they have used contraception, had abortions, or both, the right to make these decisions has meant they could pursue educations, jobs, have wanted children later on, care for children they have, leave abusive relationships, and in countless other ways live lives of their own choosing. A government that denies women the right to make these decisions penalizes women for having sex by threatening them with the loss of control over their bodies and their lives. Any account of the Constitution that takes seriously women's claim to equality cannot permit this result.

One final note: the doctors - yes, they hold the same medical licenses as all other doctors - and other medical professionals who provide women health care by prescribing contraception and performing abortion are heroes who often make unbelievable sacrifices every day in order to enable women and men to live full lives, and they deserve deep gratitude.

The Federalist Society