THE SUPREME COURT has agreed to review a Nebraska law banning what abortion foes call "partial-birth abortion." The court had little choice in the matter, because the federal courts of appeals cannot seem to agree on whether such laws are constitutional. The U.S. Court of Appeals for the 8th Circuit struck down partial-birth bans in Nebraska, Arkansas and Iowa, while a sharply divided 7th Circuit upheld similar laws in Wisconsin and Illinois.
If the court puts aside the politics of abortion, the partial-birth laws present a pretty easy case; they cannot be reconciled with the Supreme Court's prior abortion holdings. Those earlier decisions grant women the right to abortion unless a pregnancy is so advanced that the fetus would be viable outside the mother. Prior Supreme Court cases thus permit states to ban late-term abortions, but even then such laws must contain exceptions allowing abortions if necessary to safeguard the life and health of the mother. So the partial-birth laws the court has now agreed to review fall short in two respects: They contain no exceptions for the health of the mother, and they don't restrict themselves to late-term abortions, either. This latter point is a source of confusion, because the laws do ban one particular procedure for carrying out late-term abortions, but they define the procedure in so broad a manner that many abortions performed earlier in pregnancy would be outlawed too.
The partial-birth controversy is frustrating because it has so little relevance to what should be the real objective of legislation in this area: the development of balanced and reasonable abortion policies within the framework of the court's prior holdings. As Chief Judge Richard Posner of the 7th Circuit observed last year in an angry dissent, the partial-birth statutes are not concerned with any real policy objective but with "making a statement in an ongoing war for public opinion, though an incidental effect may be to discourage some late-term abortions. The statement is that fetal life is more valuable than women's health." It is an unfortunate statement, and one squarely at odds with what the Supreme Court itself consistently has said.