Abortion Foes Let Their Zeal Trump Strategy

Leaders of the anti-abortion movement are up in arms over this week’s ruling by a federal judge in San Francisco that the Partial Birth Abortion Ban Act, signed into law by President Bush last fall, is unconstitutional.

Douglas Johnson, legislative director of the National Right to Life Committee, said the ruling reflected the judge’s “deep personal hostility to the law.” Sen. Rick Santorum (R-Pa.) said it showed how judges “impose their philosophies on judicial proceedings.” The White House announced that Bush would defend the ban in order to build a “culture of life.”

Parts of the opinion by U.S. District Judge Phyllis Hamilton do suggest bias. But it is not one judge’s hostility or philosophy that imperils the partial-birth ban as it heads toward the U.S. Supreme Court. It is the hostility and philosophy of the ban’s own advocates, whose determination to moralize the language of the debate and to build a “culture of life” makes their legislation medically confusing and resistant to judicial line-drawing. They are an army of crusaders lost in a war of legal argument.

The partial-birth ban was conceived a decade ago, when abortion opponents worried that the culture had turned against them. Polls showed that most Americans opposed a general ban on abortion. The Supreme Court had just reaffirmed Roe vs. Wade. Anti-abortion advocates desperately needed restrictions that could pass constitutional muster. More important, they wanted to change the way Americans thought about the issue.

That’s when they discovered the “partial birth” procedure, in which the doctor dilates the cervix, pulls out the fetus feet-first and compresses its skull (still lodged in the womb) to complete the extraction. The procedure was known among practitioners as “dilation and extraction.” Anti-abortion groups renamed it “partial-birth abortion,” a term that was not scientific, accurate or even coherent. They sought to blur the distinction between abortion and infanticide by making the procedure sound like an interrupted birth when, in fact, it was a second-trimester abortion. In short, the ban was conceived as a public relations tool. Even some right-to-lifers complain that it’s just for show.

In Congress and on television, this blurring strategy is effective. But, in courtrooms, it’s disastrous. Judges want clear lines. They don’t like fuzzy rhetoric that might confuse prosecutors, doctors or laypeople. On medical issues, they want medically established lines. In abortion cases, they want to respect the lines the Supreme Court has drawn: fetal viability and exceptions to protect the woman’s health. Abortion opponents can’t stand these lines. They are trying to stop what they see as mass murder. So they write bills riddled with the excesses they attribute to Hamilton: deep hostility and a determination to impose their philosophies on judicial proceedings.

Four years ago, the U.S. Supreme Court invalidated Nebraska’s partial-birth ban because it lacked a health exception and was defined broadly enough to encompass other procedures, making it an “undue burden” on women. The court suggested that Nebraska legislators who opposed abortion had inadvertently sabotaged their own law by making it too broad.

After that ruling, anti-abortion leaders in Congress tried to define the procedure more narrowly in the Partial Birth Abortion Ban Act. But they couldn’t restrain themselves. Again, they refused to protect related procedures explicitly. Again, they refused to limit the ban to viable fetuses. Again, they loaded the bill with legally confusing language. Instead of adding a health exception as instructed by the court, they denied that such an exception was necessary.

In their “findings of fact,” they referred to the fetus (which the ban’s operative clause called a “partially delivered living fetus”) as a “partially delivered infant,” a “dead infant,” a “child,” an “unborn child,” a “partially born child,” a “child ... delivered, all but the head” and a “child after he or she has begun the process of birth.” They described the not-yet-emerged fetal head as the “baby’s head” and “child’s skull.”

This gave Hamilton all the ammunition she needed to strike down the ban. She assailed the terms “living fetus” and “partial-birth abortion” as medically vague and suggestive of other procedures. She shredded “Congress’ legal conclusions, which may be disguised as factual findings,” calling the loose talk of infants and babies in these findings “grossly misleading and inaccurate.” She also noted that the testimony solicited by Congress to justify the ban “was not only unbalanced, but intentionally polemic.”

Abortion foes may be right that the Supreme Court will find Hamilton’s language excessive. But the more salient likelihood is that the court will find the ban itself excessive. Perhaps the court will explain yet again how to narrow the ban to make it constitutional. Don’t hold your breath waiting for pro-lifers to heed the advice. They can’t help themselves.

William Saletan, chief political correspondent for Slate, is the author of “Bearing Right: How Conservatives Won the Abortion War” (University of California Press, 2003).