On June 4, two fathers were permitted by the federal court in Madison, Wisconsin, to participate in a case in which the state's recently enacted ban against partial-birth abortion is under challenge. Thomas Back and Frederick Buford II were allowed by Judge John C. Shabaz to be a party to Planned Parenthood v. Doyle, to defend their rights as fathers and the rights of infants partially born.
The challenged law bars an abortion technique in which the abortionist pulls all but the head of a child from his or her mother, punctures the base of the live baby's skull and sucks the child's brains out with a suction device. Having killed the child and collapsed her head, the dead baby is then delivered the rest of the way from the mother's body.
The intervention presently granted by the court is only for purposes of opposing the motion for preliminary injunction brought against the law by opponents. However, the grant of intervention permitted attorney James Bopp to file five affidavits from physicians refuting plaintiffs' experts' claims that the statute is vague and overbroad.
The intervention of the two fathers also permitted Bopp both to argue at the June 4 hearing and to file a brief of over 80 pages on behalf of Back and Buford. Bopp used this occasion to explain to the court the history of the partial-birth abortion technique, show why the law is not vague or overbroad, and demonstrate that the relevant governing law is infanticide law, not abortion law.
Because the baby is partially extracted from the mother's body before being killed, this particular abortion technique raises different constitutional questions than other abortion techniques.
In Roe v. Wade, the 1973 case in which the U.S. Supreme Court found a right to abortion, the Court also recognized that a child becomes a full legal person when removed from her mother's body. Although the Roe Court struck down the Texas abortion law, it let stand the Texas law that penalized killing of a child in " parturition" (the process of being born). From this perspective, killing a child who is partially removed from her mother's body amounts to killing a constitutional person and is not protected as an exercise of the "right" to abortion.
Mr. Bopp, lead attorney for the two men seeking to become involved in the case and NRLC general counsel, told NRL News that "this case really isn't about abortion - - it's about infanticide. These are constitutionally protected infants, not preborn fetuses."
The Wisconsin attorney general's office did not make this argument. Bopp was able to because Judge Shabaz granted the intervention.
The Wisconsin statute defines "partial-birth abortion" as a procedure "in which a person partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child, and then completes the delivery of the child."
The state law also permits civil actions for damages against abortionists by fathers who do not consent to the killing of their partially-born infants as barred by the statute. Opponents of the law told the court that they don't know what " partially vaginally delivers a living child" means - - thus the statute is unconstitutionally vague. But as Bopp notes, "Everyone knows what the delivery of a baby means. Take a pregnant woman to any hospital and ask where the delivery room is and they'll direct you to the obstetrics department, not to an abortion clinic or the loading dock."
Wisconsin has joined over two dozen states in banning this abortion technique. The U.S. Congress has twice voted to ban partial-birth abortion, but President Clinton has twice vetoed the legislation. No case challenging such protective laws has yet been reviewed by the U.S. Supreme Court.
Back and Buford were allowed to intervene to defend a cause of action against the abortionist for civil damages granted them by Wisconsin's law and the constitutional rights they have to protect their infant children. The wives of both men are pregnant. Back, 38, is from Milwaukee. He and his wife, Linda, have been married for 18 years and are the parents of three born children. Buford, age 19, is also from Milwaukee. He has been married for six months to his wife, Melissa.
Judge Shabaz has allowed the plaintiffs until today to file response affidavits from their experts, after which he will decide whether to issue a preliminary injunction. He has already denied the plaintiffs' application for a temporary restraining order while awaiting briefing and oral argument on the preliminary injunction motion.
If Judge Shabaz denies the preliminary injunction, it would be a first in a partial-birth abortion case and a rapid appeal would be likely.