THE DECISION BY a sharply divided U.S. Court of Appeals for the 7th Circuit to uphold two state bans on "partial-birth abortions" all but guarantees that the Supreme Court will have to consider the constitutionality of these laws. The decision is wrong, indefensible under Supreme Court precedent and an aggressive aggrandizement of a court's power to interpret state laws. It is also directly at odds with recent holdings by the 8th Circuit. But in some ways, the saddest part of what has become the cutting edge of abortion litigation is that the fight over partial birth laws was wholly unnecessary. It is perhaps the ultimate elevation of the politics of abortion over the creation of reasonable and balanced policy on the subject.
If the legislative goal, either at the federal or at the state level, was to restrict late-term abortions, legislation was entirely possible. As long as exceptions for the life and health of women are included, such regulation is constitutional. Indeed, the vast majority of states have already banned post-viability abortions. And Senate Democrats suggested a federal ban as an alternative to the partial-birth bill in Congress.
But instead of accepting such a deal, the antiabortion forces have pushed bills that seek to criminalize a particular procedure for late-term abortion but do so vaguely enough as to include within their scope other procedures that are used much earlier in pregnancy. Under these laws, the viability of the fetus and its stage of development are irrelevant; the manner of the abortion is all important.
But as Chief Judge Richard Posner pointed out in an excellent dissent, this creates utter irrationality in the laws. The definition of partial-birth in these laws -- the line that separates a felony punishable in Wisconsin by life in prison from a constitutional right -- comes down to the direction and placement of the fetus's feet during the procedure. The laws, Judge Posner argues, could clearly be used to prosecute abortions that are protected by Supreme Court precedent. And no exception is made for the health of the mother either. Only by effectively rewriting these state laws to narrow their scope -- an act of naked judicial legislation -- was the court majority able to hold either that they did not place undue burdens on women seeking abortions or that they were not unconstitutionally vague.
Whatever one thinks of the Supreme Court's abortion jurisprudence, it is the law, and this law cannot be overturned by cleverly worded statutes or by activist lower-court judges. While there clearly exists room to ban most late-term abortions, these statutes go way beyond what is constitutionally permissible. The decision upholding them should be reversed.