Making the Case for the

Constitutionality of Bans on
Partial- Birth Abortions

By Barry A. Bostrom, M.Div., J.D.

Editor's note. Issues in Law & Medicine is a quarterly peer- reviewed professional journal published by the National Legal Center for the Medically Dependent & Disabled, Inc., the Horatio R. Storer Foundation, Inc., and the American Academy of Medical Ethics, Inc. It has been published since 1985 and is devoted to providing technical and informational assistance to attorneys, health care professionals, educators, and administrators on legal, medical, and ethical issues arising from health care decisions. The following article summarizes the summer 1998 issue of this invaluable publication.

The summer 1998 edition of Issues in Law & Medicine focuses on partial-birth abortion issues. Partial-birth abortion, it is argued, goes beyond what was allowed in Roe v. Wade and, therefore, bans on this particular abortion technique are constitutionally permissible.

Partial-birth abortion involves (1) grasping a living fetus in the womb with an instrument; (2) pulling it into a breech presentation; (3) delivering all of the baby feet-first except for the head; (4) puncturing the skull of the living, partially delivered baby with a surgical instrument; (5) inserting a suction tube into the skull hole; (6) extracting the child's brains, collapsing the skull; and (7) completing the delivery of the now-dead infant.

The article written by attorney James Bopp, Jr., and Dr. Curtis R. Cook, a specialist in maternal-fetal medicine, demonstrates the constitutionality of partial-birth abortion bans by way of critiquing the first court decision decided on the merits of a ban on partial-birth abortions - - the Michigan case of Evans v. Kelley.

In that July 31, 1997, decision, U.S. District Court Judge Rosen overturned the state's ban on partial-birth abortions signed into law by Gov. John Engler June 14, 1996.

Essentially, Judge Rosen held that the law (1) was unconstitutionally vague, violating due process; (2) was unconstitutionally overbroad, also in violation of due process; and (3) imposed an "undue burden" on a woman's right to choose an abortion. (The "undue burden" standard was a key component of the Supreme Court's 1992 Planned Parenthood v. Casey decision.)

Bopp and Cook present a detailed analysis that rebuts each of these contentions. They demonstrate that partial-birth abortion bans patterned after the federal bill passed by both houses of Congress (and twice vetoed by President Clinton) are constitutional. In summary, their argument makes four major points:

(1) The clear legislative definition of "partial-birth abortion" can be easily distinguished from other abortion procedures; (2) Permissive abortion laws do not apply to partial-birth abortion bans because the right to abortion pertains to unborn human beings, not to those partially delivered; (3) Partial-birth abortion bans are also rationally related to legitimate state interests in protecting viable or near-viable partially delivered infants; and (4) Even if the abortion law established by the Supreme Court is deemed to apply in the partial-birth abortion context, a partial-birth abortion ban is still constitutional under Planned Parenthood of Southeast Pennsylvania v. Casey (the 1992 U.S. Supreme Court decision upholding and defining the right to abortion) because a ban on partial-birth abortions does not impose an "undue burden" on the abortion right. There is no undue burden because even when an abortion is deemed necessary, there are equally safe alternative abortion procedures that may be used by the abortionist instead of partial-birth abortion.

The Verbatim section offers verbatim documents of interest to the readers. This issue offers the full text of the Partial- Birth Abortion Ban Act approved by both houses of the U.S. Congress, the written testimony of Dr. Cook on partial-birth abortion, and the hearing held on the "Effects of Anesthesia during a Partial-Birth Abortion" conducted by the House of Representatives, Subcommittee on the Constitution, Committee on the Judiciary in Washington, D.C. Testimony from Noris Ellison, M.D., president of the American Society of Anesthesiologists; David J. Birnbach, president of the Society for Obstetric Anesthesia and Perinatology; David N. Chestnut, M.D., chairman, Department of Anesthesiology, University of Alabama at Birmingham; and Jean A. Wright, M.D., medical director, Egleston Childrens' Hospital, Emory University, at this March 26, 1996, hearing corrected many of the errors of medical fact published in the media during the congressional debates.

For example, according to medical experts, anesthesia given to the mother during a partial-birth abortion has little or no effect on the unborn infant. It certainly does not kill the infant prior to the partial-birth abortion, as erroneously claimed by abortion advocates, and does not render the procedure painless for the infant.

The Nota Bene section, which summarizes court decisions of interest, deals with Evans v. Kelley.

The Abstracts section excerpts from journal articles. This issue includes recent articles on assisted suicide in Oregon, the meaning and impact of the Supreme Court cases on physician- assisted suicide, lessons on physician-assisted suicide from the African-American experience, the role of facts in the assisted suicide debate, and the effect of disability stereotypes on the assisted suicide debate.

The Novi Libri section, which announces new books, includes four new books that examine euthanasia in the Christian tradition, a Christian response to assisted suicide, assisted reproductive technologies, and health care ethical issues for the 21st century.

Issues in Law & Medicine is a quarterly peer-reviewed journal. The annual subscription rate is $59 for individuals, and $79 for institutions for four issues. Single issues are $14.75. Requests may be sent to Issues in Law & Medicine, 3 South 6th Street, Terre Haute, IN 47807-3510.

Barry A. Bostrom is the executive editor of Issues in Law & Medicine.