Back to the States

Published May 29, 2007

National Review Online

Partial-birth abortion hasn’t been a good issue for the pro-abortion movement. It’s generally true that the more Americans focus on the reality of abortion, the less they support it. And that proposition has special force for partial-birth abortion, a method of late-term abortion in which the abortionist dilates the mother’s cervix, extracts the baby’s body by the feet until all but the head has emerged, stabs scissors into the head, sucks out the baby’s brains, collapses the baby’s skull, and delivers the dead baby. Indeed, a recent New York Times article acknowledged that the campaign over the past dozen years to outlaw partial-birth abortion has broadened support for the pro-life movement.

It might be thought that last month’s Supreme Court decision in Gonzales v. Carhart ruling that the federal Partial-Birth Abortion Ban Act of 2003 is constitutionally permissible signals an end to the legislative work on partial-birth abortion. That legislative work, begun in 1995, resulted in enactment by more than two dozen states of bans on partial-birth abortion. But all (or nearly all) those bans were negated by the Court’s 2000 ruling in Stenberg v. Carhart, which declared Nebraska’s law to be unconstitutional. The Court has now permitted the federal ban on partial-birth abortion to go into effect. Is there, then, any reason for any further legislative action on partial-birth abortion?

Absolutely. In particular, new state bans on partial-birth abortion that are modeled carefully on the federal law are desirable for several reasons. First, consistent with the scope of Congress’s power under the Commerce Clause, the federal ban applies only to those partial-birth abortions “in or affecting interstate or foreign commerce.” In some instances, it may well be that a partial-birth abortion is in fact wholly intrastate in nature — and therefore beyond the reach of the federal ban. In others, it may well be burdensome or complicated to establish that the partial-birth abortion was in, or affected, interstate (or foreign) commerce. This difficulty of proof might in some instances deter federal prosecutors from bringing charges under the federal ban.

Second, as Justice Thomas’s concurring opinion in Gonzales signals, it is not clearly settled that the federal ban is a permissible exercise of Congress’s Commerce Clause power. The pro-abortion groups challenging the ban did not argue that it exceeded Congress’s Commerce Clause power because they were concerned that the federal Freedom of Access to Clinic Entrances Act — which severely penalizes even completely peaceful protests outside abortion clinics — might be threatened by such a ruling. So the Court in Gonzales had no occasion to address the issue. A state legislature’s power, by contrast, plainly extends to intrastate acts, whether or not they also affect interstate (or foreign) commerce.

Third, the resources of federal prosecutors are limited and face many competing demands. The same, of course, is true for state resources, but the existence of parallel state and federal bans would increase the overall resources available to prosecuting partial-birth abortion and would enable state and federal prosecutors to coordinate their efforts.

Fourth, the enforcement priorities of federal prosecutors change with each new administration. Whenever the next Democratic president takes office, there is ample reason to believe that criminal enforcement of the federal ban will cease. Although the private civil actions authorized by the federal law will still be available, enactment and enforcement of state bans would help fill the gap.

Fifth, state bans could carry higher penalties for the partial-birth abortionist than the two-year maximum term under the federal ban. They could thus provide additional deterrent effect.

In sum, there are compelling reasons that state legislatures that saw fit to enact bans on partial-birth abortion before the Court’s 2000 decision in Stenberg should reenact bans that replicate the federal law’s description of the prohibited act (but without the interstate-commerce element). And, of course, states that did not previously enact bans are now free to do so. Because the Court’s decision in Gonzales did not rest at all on deference to Congress’s role as factfinder, it is clear that these state partial-birth abortion bans would be constitutionally permissible.

There is thus no reason to think that the issue of partial-birth abortion will be disappearing from the public arena any time soon. Rather, it should continue to frame the abortion debate through the 2008 presidential campaign.

 — Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog.

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