Last Tuesday, the day before the Supreme Court compounded the travesty it has made of abortion law, a California court convicted a former sheriff's deputy of murder in the shooting death, during an unauthorized drug raid, of a fetus in a woman who survived the wound. Because of the Supreme Court's 1973 abortion ruling, no state could forbid the woman to kill the child by abortion, even though it was in the third trimester. But how can anyone "murder" something the Supreme Court says is only "potentially" human and has the legal status of hamburger in the woman's stomach?

In last week's decisions, the court discovered that the Constitution forbids Akron's requirement that other than first-trimester abortions be performed in a hospital; forbids Akron's requirement that physicians perform abortions on unmarried women under 15 only with certain parental permission or court orders; forbids Akron's requirement that physicians tell women seeking abortions the developmental status of their fetuses, the date of viability, physical and emotional complications that can result from abortion, and alternatives to abortion; forbids Akron's requirement of a 24-hour interval between a request for and performance of an abortion; forbids Akron's requirement that abortionists dispose of aborted fetuses in a "humane and sanitary manner."

To see the intellectual scandal of the court's position in 1983, consider Wednesday's ruling that Missouri can require the presence of a second physician during an abortion performed after "viability."

With 1.6 million abortions annually, it regularly happens that an abortion procedure results in a live birth and the inconvenient life is "terminated" by suffocation or aggressive neglect. However, Missouri requires (when the requirement does not increase the woman's risk) a late abortion to be performed by the method most likely to preserve fetal life--that is, the method most likely to fail, least likely to kill the fetus, which is the aim. Now the court says Missouri can require the presence of a second physician because if the fetus survives the attempt to kill it, the state "may" protect "the lives of viable fetuses," meaning "a fetus born alive."


The "viable fetuses" who the second physicians serve are often called, quaintly, "children." A "fetus born alive" is, in the vernacular, a "baby."

Concerning abortion, the justices use words and categories the way babies use forks and spoons: with gusto, but sloppily. In 1973 the court made much--or thought it did--of "trimesters." But regarding pregnancy a trimester is a demarcation without moral or medical significance, and without much legal significance, in spite of the court's attempt to give it such. The court, which does not yet seem to know what it did in 1973, said then that no state can prevent even a third- trimester abortion that any physican says is necessary for a woman's health. And "distress" (which can be caused by denial of an abortion) can be a health hazard.

In 1973 the court thought it made much of "viability," the point at which a fetus can lead a "meaningful" life outside the womb. Actually, viability made no significant difference concerning permissible regulation of abortion. The court gave no meaning to the word "meaningful." And the point at which a fetus could survive outside the womb was unclear then and has moved since, thereby demonstrating the folly of linking constitutional law to a dynamic science.

Two years ago a Georgia court in effect took custody of a fetus, holding that an unwilling woman must undergo a caesarean section for the fetus's safety. Evidently, the fetus had a right to protection.

In Baltimore, a pregnant drug abuser has been placed under court jurisdiction to protect the health of the fetus. She may not injure the fetus with drugs. Of course, she retains a right to kill it with an abortion.

In Maryland, a fetus has a right to inherit property if the fetus is conceived before the death of the person from whom the property will be inherited. Prenatal medicine can perform wonders for fetuses that can be aborted at any stage. Malpractice cases are establishing that a child born injured as a result of negligent prenatal medicine can claim violation of rights it had as a fetus.

Fetuses, it seems, have various rights --but no right to life.

Cut adrift by its 1973 decision from constitutional and bio-medical realism, the court manufactures ever finer distinctions from never relevant categories. The justices should pray--not in a public building, of course--for Sen. Orrin Hatch's amendment ("A right to abortion is not secured by this Constitution"). That would restore the status quo ante 1973, thereby restoring to the states responsibility for dealing with an issue that clearly is beyond the court's competence.