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Legal Primer on Partial Birth Abortion
Does Roe v. Wade protect this?
Does "terminating pregnancy" include killing a child in the birth canal?
Do you know about the broad "health" definition?
Read on . . .
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* Read about the 2000 Supreme Court decision that upheld the constitutionality of partial birth abortion by a 5-4 vote.
* Will the new Supreme Court find partial birth abortion to be a crime or a constitutional right? Oral arguments will be in the Fall of 2006.
Legal Facts: Partial Birth Infanticide
The Partial-Birth Abortion Act was enacted with the passage and signature of federal legislation, S. 3 of 2003.
In 2000, the U.S. Supreme Court struck down the Nebraska partial-birth ban in a narrowly split 5-4 decision by erroneously applying the abortion law of Roe v. Wade to a procedure that is medically and legally infanticide, not abortion.
Distinguishing abortion and infanticide: Roe and later High Court abortion cases have always recognized a woman’s right to "terminate her pregnancy"[1] — but never a right to a dead child. It is a medically established fact, on the record in many prior court cases, that the onset of birth terminates a pregnancy.
Because the partial birth procedure of pulling the child from the uterus into the birth canal "terminates the pregnancy," there is no need to commit infanticide in process of birth.
Justice Thurgood Marshall himself made this point during the second oral argument in Roe v. Wade. That transcript shows that in discussing Texas’s parturition statute, Justice Marshall stated that killing a child in the process of birth “is not an abortion.”[2]
A federal ban on killing a child in the process of birth is reasonably related to the nation’s interest in preventing the erosion of the line between abortion and infanticide, as the Senate bill’s findings reflect.[3]
The broad definition of "health" in Roe's companion case facilitates late term abortion procedures, through all nine months of pregnancy:
“[T]he medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well being of the patient. All these factors may relate to health.” Doe v. Bolton, 410 U.S. 179, 192 (1973).
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[1] See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 844 (1992).
[2] During the 1972 reargument of Roe, this Court discussed whether the term “abortion” encompassed killing a child during the process of birth. The following exchange between Justice Marshall and counsel for the State of Texas occurred in the context of a discussion about the Texas parturition statute, which had not been challenged as unconstitutional:
JUSTICE MARSHALL: What does that [parturition] statute mean?
MR. FLOWERS: Sir?
JUSTICE MARSHALL: What does it mean?
MR. FLOWERS: I would think that—
JUSTICE STEWART: That it is an offense to kill a child in the process of childbirth?
MR. FLOWERS: Yes sir. It would be immediately before childbirth, or right in the proximity of the child being born.
JUSTICE MARSHALL: Which is not an abortion.
MR. FLOWERS: Which is not—would not be an abortion, yes, sir. You’re correct, sir. It would be homicide.
Reargument of Roe v. Wade, October 11, 1972 (emphasis added). The entire written transcript of the October 11, 1972, reargument, along with a link that plays the audio tape, can be found at the Northwestern University website: http://oyez.nwu.edu/support/cases/334/reargument.html.
[3] The legislative finding section of S.3 states, “For these reasons, Congress finds that partial-birth abortion is never medically indicated to preserve the health of the mother; is in fact unrecognized as a valid abortion procedure by the mainstream medical community; poses additional health risks to the mother; blurs the line between abortion and infanticide in the killing of a partially-born child just inches from birth; and confuses the role of the physician in childbirth.” S.3, Partial-Birth Abortion Act of 2003, Section II(14)(O).
MEDICAL:
See the medical drawings of partial birth abortion.
Learn about PBA health risks to women.
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