Constitutionalized Infanticide
On Wednesday, the Supreme Court of the United States will hear oral arguments for two cases involving Congress's ban on partial-birth abortion. In both cases, the lower courts of appeals held the federal Partial-Birth Abortion Ban Act unconstitutional. Those courts are wrong and the Supreme Court should reverse them.
The Partial-Birth Abortion Ban Act only applies to the partial-birth abortion of a child that is partly outside the body of the mother. Even under Roe v. Wade and its progeny, the ban on partial-birth abortion of a child partly outside the mother's body is a valid, indeed essential, barrier against the practice of infanticide. None of the Court's prior abortion cases addressed a procedure that many, including Justices of the Supreme Court, consider to be infanticide.
The federal Partial-Birth Abortion Ban Act operates at the borderline between pre-natal and post-natal human life. Born human children indisputably enjoy the basic rights secured to all "persons" under the Fourteenth Amendment. It, therefore, cannot be doubted that there is a legitimate and even compelling state interest in protecting such children from harm. Hence, governments have a compelling interest in preventing the spread of the practice of abortion into that of infanticide. The Partial-Birth Abortion Ban Act furthers precisely that interest. As one judge recently phrased it, the Partial-Birth Abortion Ban Act protects the unborn child's "emerging right to life" and furthers the "compelling interest in protecting the line between abortion and infanticide."
Partial-birth abortion procedures represent the beachhead of the assault on post-natal life, the bridge between abortion and infanticide. Absent strong legal barriers and vigorous societal condemnation, partial-birth abortion procedures open the way to legal infanticide. As Justice Kennedy noted in the previous partial-birth abortion case out of Nebraska, Stenberg v. Carhart, "States also have an interest in forbidding medical procedures which, in the State's reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus."
Governmentsand all their peopletherefore have a tremendously important stake in the unqualified prohibition of partial-birth infanticide. The child who "crosses the goal line"by foot or headinto the realm outside the body of the mother must receive the full protection of law if we are not to abandon, inexorably, the sanctity of post-natal life as well.
The partial-birth abortion procedure perverts the natural birth process. The federal ban seeks to halt the extension of the gruesome abortion practice into gruesome infanticide. The child who breaks the protection of the mother's body ought to be safe from destruction even though equally deserving children regrettably may be slain just inches away. This "bright line" though not as protective of pre-born life as justice might dictate, nevertheless represents an essential barrier against the encroachment of abortion into infanticide.
As already mentioned, the central goal of the federal Partial-Birth Abortion Ban Act is the defense of the border between abortion and infanticide. What matters the most to this specific defense is the protection of all children who, while still alive and therefore capable of being protected, break the plain that currently marks the dividing line between abortion and infanticide. What is crucial is maintenance of the bulwark against infanticidea bulwark that would be pulverized by allowing, as Justice Kennedy noted in the previous partial-birth abortion case, "a procedure many decent and civilized people find so abhorrent as to be among the most serious crimes against human life." The Supreme Court should not enshrine in our founding documents a constitutionalized right to infanticide.