If we can take them at their word, a cluster of doctors, schooled in the priciest colleges, thought there was something too hazy or "vague" in the definition of a "partial-birth abortion." They claimed to be "chilled" by laws passed to forbid this procedure, for they would not know when they were crossing the line separating this procedure from other kinds of abortions and making themselves targets of prosecution.
To paraphrase Henry James, these good doctors have made themselves victims of perplexities from which a single spark of direct perception might have spared them. Last week it fell to the Seventh U.S. Circuit Court of Appeals, in a decision written by Judge Frank Easterbrook, to administer those bracing jolts of sobriety. By a 5-4 majority, the court sustained the laws barring partial-birth abortions in Illinois, Wisconsin and Indiana. Since the Eighth Circuit has reached the opposite conclusion in September it struck down similar laws in Arkansas, Iowa and Nebraska the issue is almost certainly headed for the Supreme Court.
Judge Easterbrook and his colleagues got it right. The description of a partial-birth abortion is not at all inscrutable. In medical jargon, it is known as a D&X, for "dilation and extraction": The fetus is delivered feet-first, and with about 70% of the child dangling out of the birth canal, the head of the child is punctured, the brain suctioned out and the body removed "intact." As the law in Illinois put it, the surgeon "partially vaginally delivers a living human fetus or infant before killing the fetus or infant and completing the delivery."
There is nothing the least vague about this law or what it means to forbid. The unsettling news is that this gruesome procedure is not entirely distinguishable from other late-term abortions that remain quite legitimate. With the so-called D&E abortion (dilation and evacuation), the child is dismembered in the womb, and the pieces are drawn past the birth canal and out of the body, detached from a fetus with a beating heart.
Still, it was clear that these were not the abortions these laws were meant to reach. From the drafting of the bill, and the political strategy of these measures, the object was to test the limits of abortion by banning only this grisly procedure at the point of birth. Beyond that, as Judge Easterbrook noted, the attorneys general of Illinois and Wisconsin declared that the statutes would be enforced against only D&X abortions. Of course, a statute may have a meaning and application that runs beyond these intentions, but the very discipline of judicial review requires a case in controversy. Before judges go about enjoining the enforcement of a law, they should wait for a case wait, that is, to see just who, if anyone, is prosecuted.
Judge Easterbrook recalled a law in Florida forbidding "the abominable and detestable crime against nature." The courts in that state would explain that the unmentionable crime was sodomy, and the U.S. Supreme Court later sustained that statute against claims of vagueness. Earlier the high court had repelled similar charges of vagueness against the code of military justice, which forbade "conduct unbecoming an officer and a gentleman." Set against these examples, Judge Easterbrook observed, the statutes on partial-birth abortion were "paragons of specificity."
But if doctors were not threatened with prosecution, what of their patients? Had anyone suffered injury or been denied an otherwise legal abortion? Over the past year, the law on partial-birth abortion in Indiana had not been enjoined, so that state offered a laboratory of sorts. In the course of the year, there had been no shift away from D&E abortions; in fact, the number had increased. As Judge Easterbrook summed it up, quite tellingly, the "plaintiffs do not contend that in any of the states where a partial-birth abortion law is in effect, even one woman has been injured or denied an abortion because of the law."
For Judge Richard Posner, who wrote the dissent, the whole apparatus of argument his colleagues brought forth was specious. It was at least conceivable to him that the D&X procedure could be better for a particular woman, because it might reduce the amount of her bleeding or the dangers of infection from fetal parts left behind. To deny the choice in that case could be, for that woman, an "undue burden."
But Judge Posner's claim did not really rest on empirical tests, for the procedure was too rare to have been the object of a systematic study. For Judge Posner, the case turned on axioms. He began with the right of women to choose abortion, and anything that burdened or qualified that right was presumptively suspect, wrong, unconstitutional. In one of the curious sidelights of the dissenting opinion, Judge Posner expressed a deep concern for abortionists, who "are frequent subjects of picketing and other harassment and occasionally of physical assaults." But he had no such solicitude for the one whose assault is the object of the surgery: "From the standpoint of the fetus . . . it makes no difference whether, when the skull is crushed, the fetus is entirely within the uterus or ifs feet are outside the uterus."
The American Medical Association had testified that the D&X procedure was not strictly necessary for the health of the mother; still, there were opinions on either side. Judge Posner expressed a muted contempt for the experts with whom he disagreed, and he wondered what the courts would have made of a legislative finding of fact, in the South, in the 1950s, that blacks as a group were "slow learners."
The point, apt enough, ran even deeper than Judge Posner seemed to grasp. He has marked his career with the claim to bring to the law the rigorous methods of empirical social science. And so it is rather bizarre that Judge Posner has left thoroughly untouched by those methods the very premises that have governed his judicial opinions in these cases on abortion. After all, has embryology no evidence to bring forth on the question of when human life begins?
Not once in these cases has Judge Posner troubled to ask: On what ground, of evidence or principle, do we separate that offspring of Homo sapiens in the womb, from those other beings who are given the protection of the law? Nothing in his analytic arsenal has he ever brought to bear on that question while he has acted as a judge. Evidently, this issue of abortion brings him to the high pitch of his passion; and yet, to use an old phrase, his treatment of the "evidence" suggests reason at retail and madness at wholesale.