FIVE:
Roe was premised on the idea that the
Constitution protects medical privacy, an
important concept in law for everyone, not
just women. But even constitutional rights
may be regulated, as, for example, libel
laws regulate free speech. Roe did not
grant an unqualified privilege: it held that a
woman's claim to make her own medical
choices is strong in the first trimester of
pregnancy, moderate in the second, and
weak in the third, at which point the state
acquires a "compelling" interest in the
protection of new life. The court's
inclination to permit abortion in the first
two trimesters and all but ban it in the
third was both morally defensible and
helpful to physicians and regulators,
because the beginning of the third
trimester can be objectively determined
within a week or so. Whatever one thinks
of the legal reasoning in Roe--the opinion is
sometimes attacked even by liberal scholars
for its shaky use of precedent--its
attempts at rights-balancing are a model of
conscientious jurisprudence.
The problem is that Roe's third-trimester
protections were brushed aside by two
descendant Supreme Court cases, Danforth
in 1976 and Colautti in 1979. Danforth
tossed out Roe's clear, comprehensible
third-trimester distinction and substituted
a "viability" standard so vague it was
impossible to make heads or tails of it.
Unlike the third trimester, which can be
objectively delineated, viability is
subjective. Some babies are viable at the
biological frontier of 23 weeks; others die
even if carried to term; there is no way to
know in advance. Danforth went so far as to
prohibit states from drawing clear lines at
the third trimester--that is, it forbade
states from using the logic of Roe.
Three years later, Colautti essentially said
that, since no one could understand
Danforth, it would henceforth be up to
each woman's physician to determine
whether a fetus was viable and thus legally
protected. Here a misjudgment was poised
atop an error, given that no doctor can ever
be sure that a fetus is viable. Since the
person making the determination may also
perform the abortion, all a physician has to
do under Colautti is hazard a guess that the
fetus is not viable, and a late-term abortion
may proceed. There is no accountability
for, or review of, the physician's judgment.
And, if an abortion occurs, no disproof of
the doctor's judgment is possible, since the
chance of viability ends.
The blurry viability standard was
reinforced in the 1992 Supreme Court case
called Casey. Again the Court appeared to
outlaw late-term abortion, saying that a
viable fetus should be constitutionally
protected. But it rejected bright-line
definitions of the onset of life, specifically
forbidding states to employ the third
trimester as a clear, enforceable standard.
Instead the Court cryptically declared that
viability confers protection "whenever it
may occur"--medically close to meaningless,
since there is no sure means to determine
viability. Under Casey, as under Colautti, it
is the abortion provider who deems
whether a third-trimester fetus is viable,
which makes almost any late-term abortion
permissible. That is the status quo today.
Casey appeared to grant states the
authority to restrict late-term abortion so
long as they do not "unduly" burden women
seeking early abortions. Thirty states
proceeded to enact third-trimester
restrictions, but most of these have been
struck down, either for being too vague to
enforce or for containing Trojan-horse
language meant to erode Roe itself.
Recently, some states have opted for
legislation intended solely to prevent a form
of late-term abortion called D&X, in which
delivery is induced, the fetus is partly
born, feet first, and then the skull is
crushed and the brains vacuumed out.
There is no moral distinction between
aborting a late-term fetus via D&X and
doing the same via the D&E procedure, in
which death occurs within the womb: either
both are defensible or neither is. (See
"Sideshow," by Jeffrey Rosen, November
29, 1999.) Yet D&X is undeniably barbaric.
The AMA has recommended that its
members not perform this procedure,
adding that "there does not appear to be
any identified situation" in which it is
required for the health of the mother. In
many nations, the technique is unthinkable:
Fisk, of the Imperial College School of
Medicine, notes, "I've never known a
respectable physician who has done a D&X."
This fall, the U.S. Court of Appeals for the
Seventh Circuit upheld a Wisconsin statute
that prohibited D&X abortion but allowed
D&E. (The opinion was by my brother Frank,
an appellate judge, who had no connection
to the writing of this article.) Editorialists
declared that, for the first time, a federal
court had "banned" late-term abortion,
though the decision did nothing of the
kind--it simply found that Wisconsin could
regulate types of late-term procedures, so
long as women retained the rights
delineated under Roe. Also this fall, the
U.S. Court of Appeals for the Eighth Circuit
overturned a Nebraska law that restricted
D&X but made no provisions for threats to
the life of the mother. Faced with
conflicting opinions among the appellate
circuits, the Supreme Court said last week
that it would hear the late-term abortion
issue again, setting the stage for the first
important abortion ruling of this generation.
Meanwhile, each year since 1995, Congress
has enacted legislation to restrict late-term
abortion, and each year President Clinton
has either vetoed or threatened to veto it.
During the sequence of votes and vetoes,
each side has gone out of its way to make
itself look bad. Pro-life members of
Congress have proposed absolute bans that
make no provision for protecting the life of
the mother, which undermines their claim
to revere life. Senator Diane Feinstein of
California, in what was surely one of the
all-time lows for American liberalism,
brought to the Senate floor a bill intended
to affirm a woman's right to terminate a
healthy, viable late-term fetus. Both sides
have opposed a reasonable middle ground.
In 1996, for example, Representative Steny
Hoyer of Maryland, a liberal Democrat,
offered a bill to ban late-term abortions
except when necessary to avert "serious
adverse health consequences" to the woman.
Rather than rally around this compromise,
pro-lifers and pro-choicers mutually
assailed it.
[continued. This is from tnr.com] |
