Partial Birth Revisited
EDITORIAL Partial Birth Revisited 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...
...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...
...there’s no other way to get it past the woman’s cervix...
...Other safe abortions will remain available in every circumstance, the judge determined...
...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...
...This neat theory, too, has by now disappeared from public debate...
...With last month’s Seventh Circuit ruling, the federal appellate courts have badly split over the constitutional issues raised by partial-birth abortion...
...Planned Parenthood’s fear that Wisconsin’s law prohibits many different kinds of abortion is “a demon of their own creation...
...in fact, a principal advantage of the technique, he pointed out, was that it did not require general anesthesia...
...Easterbrook’s meticulously argued ruling has been poorly reported in the mainstream media...
...On close inspection, this ruling made no sense...
...All of these claims were demonstrably untrue even at the time they were made...
...Haskell himself, as it happens—presented testimony concerning a practice previously unknown to medicine...
...But you don’t much hear this defense of the procedure any more, either...
...Which distortions, sad to say, have proved remarkably effective...
...Partial-birth procedures, it was contended, are not the only abortions in which a baby’s head is sucked empty...
...In 1996 and 1997, President Clinton sealed his vetoes of congressional partialbirth 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...
...None of this incontestable evidence has ever mattered to pro-choice dogmatists, who still do not bother to acknowledge its existence...
...Planned Parenthood’s logic, then: Partial-birth abortions must sometimes crush a fetus’s head...
...Its defenders now admit that it is grotesque...
...Similarly bogus complaints have defeated every other state’s partial-birth restriction in every other federal trial court...
...The other 20 percent were for “genetic reasons” like Down syndrome that pose no risk to a mother...
...Harlan Giles to a quack who believes that “vitamins are worthless...
...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...
...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...
...And despite the fact that there isn’t even a speck of authoritative medical evidence that brain-suctioning ever makes an abortion safer...
...Which is also, Haskell claimed, what doctors performing standard second-trimester D&E abortions invariably do...
...nothing that happens in a D&E abortion may be constitutionally restricted by any state...
...Bucking the national trend, Judge Shabaz, to his credit, was unimpressed by nonsense like this...
...But it was later upheld by the Sixth U.S...
...So why, then, have they since been largely discarded by the liars...
...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...
...The Supreme Court is now obliged to step in and resolve this split...
...So instead he simply reaches through the mother’s cervix with forceps and crushes the baby’s skull—like a “folded piece of cardboard...
...Circuit Court of Appeals sustained Shabaz...
...For in recent years the partial-birth battle’s front line has shifted away from Congress to the federal courts...
...He was persuaded instead by the testimony of Wisconsin’s expert witness—a distinguished (and otherwise pro-choice) perinatologist, Dr...
...Most newspaper coverage has been directed instead—admiringly—to a characteristically flamboyant dissent by Judge Richard Posner...
...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...
...In any pregnancy, “as long as the baby remains within the mother’s body, it poses a potential threat to her life or health...
...Instead, he “routinely” performed partial-birth abortions on “all patients” between 20 and 24 weeks pregnant...
...Harlan Giles—that an infant’s skull need never be collapsed to achieve its complication-free delivery, even in an abortion...
...Earlier this year, Shabaz upheld that law...
...Posner complains that the entire controversy has been “whipped up” merely to “dramatize the ugliness of abortions...
...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...
...Ohio’s law contained a health exception...
...They have been discarded just as cynically as they were once advanced— simply because they are no longer convenient...
...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...
...The baby is an enemy...
...The standard procedure is delivery by Caesarean section, followed by a neurosurgical shunt of fluid from the newborn’s brain...
...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...
...And only once in all this mass of litigation has the trial judge upheld a state’s partial-birth restriction...
...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...
...He did not mention using general anesthesia as an agent of fetal demise...
...Eighty percent of these abortions, Haskell told the AMA’s newsletter in 1993, were “purely elective...
...Abortions are not that ugly, he concludes...
...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...
...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...
...Every other state, that is, except Wisconsin...
...The lies served their purpose, that is...
...Circuit Court of Appeals...
...No state may forbid the use of any abortion technique, no matter how extreme or ugly, on a pre-viable fetus, Planned Parenthood suggested...
...David Tell, for the Editors...
...No more, it seems, is partial birth a rare and humane form of abortion...
...In every other districtcourt 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...
...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...
...Needless to say, we are convinced that Posner is wrong and that Shabaz and Easterbrook are right...
...And just last month, in a 5-4 majority opinion by Judge Frank Easterbrook, the Seventh U.S...
...All of which is a bad omen...
...EDITORIAL Partial Birth Revisited 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...
...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...
...The only longterm 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...
...But the current court retains a pro-choice majority and inherits a quartercentury of abortion precedents notable for loophole-ridden incoherence...
...But all but seven of the bans have been formally challenged on constitutional grounds...
...But the question remains: Will the Supreme Court agree with us...
...Despite the law’s health exception...
...A D&E abortionist has to crush that ping-pong ball, Haskell said...
...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...
...And no state may forbid a procedure whose described elements at all overlap with other kinds of abortion...
...Posner is captivated by an imaginary “consensus of medical opinion” that partial-birth abortions are a valuable life-and-health-preserving technique...
...so partial-birth procedures may not be constitutionally restricted by any state...
...Nor did Haskell pretend to choose the procedure out of case-by-case concern for the health of women who came to his clinic...
...Martin Haskell...
...In Wisconsin, Planned Parenthood asked U.S...
...D&Es must sometimes crush a fetus’s head...
...Abortion is our best defense...
...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 1995, more than half the nation’s state legislatures have managed to enact their own, local bans on partial-birth abortion...
...But the plaintiff—Dr...
...Hydrocephaly, incidentally, President Clinton’s favorite justification for partial-birth abortion, is not, in fact, inevitably fatal to an infant...
...Posner likens the “dubious” Dr...
Vol. 5 • November 1999 • No. 10
