When Is It Too Late?

So James Taranto joked today in Best of the Web about “woman’s constitutional right to total-birth abortion in the fourth trimester and beyond.”

He was taking to task a website that decried the recent SCOTUS decision that upheld a ban on partial birth abortions as, basically, the end of civilization as we know it, and the erosion of pretty much every right women have ever had.  Suffice it to say, any kind of overreaction like that deserves whatever fun can be made of it.

But allow me, for a moment, to address the decision itself.  The Supremes did not uphold a ban based on the time during pregnancy of the abortion, simply the method.  This decision contained no reversal of Roe v. Wade, which made it unconstitutional to interfere in any way a woman’s right to terminate a pregnancy.  The partial-birth abortion ban does not so interfere.  A woman may still get an abortion after the end of the first trimester, she’s just going to have fewer choices about how to do it.  Honestly, how many women even cared about the technique the doctor was going to use?  This is more annoying to doctors than an infringement on the constitutional rights of women.

(Warning, this is going to get a little graphic:)

Let’s break down what you can, and can’t do, anymore:  You can, at whatever point in pregnancy was allowed, still terminate the pregnancy.  You can still have a doctor insert instruments into the vagina, dismember the fetus and remove it in chunks.  What you can’t do is dilate the cervix, begin to deliver the baby, suck out the contents of its head once it passes through the vagina, thus causing it to implode, and then remove the rest of the body.

What’s the difference?  Does being forced to dismember the fetus in utero somehow make abortion rights activists more queasy?  Why’s that?  It’s a woman’s body, I thought.  If discussing what’s actually done, and coming up with some limits makes you uneasy, then maybe you should be rethinking your stance on abortion.

Finally, as a matter of legal policy, let me make a legal argument in support of the decision: the basic, underlying argument of the two sides of abortion boils down to at what point you consider the fetus a “life”.  In fact, the major argument in favor of abortion rights is the aforementioned “woman’s body” argument. (I happen to hate that argument, think it’s total BS, and derive my argument and opinions on abortion differently.  Nevertheless, in the spirit of meeting the argument head on, I’ll work with it.)  Well, we’re taught in law school to distinguish the case law from your fact set.  Well, here’s a distinction: once the fetus is delivered, it’s no longer the woman’s body.  And then the government’s interest in protecting life trumps the woman’s interest in ending it.  How about we draw a line at “the baby is born” for a good time to forbid abortions?  I don’t mean that in the tongue-in-cheek way that Taranto means it, and that anti-abortion people use it (“late-term abortion” of a 18-year-old boy, etc.) but seriously.  You can terminate your pregnancy.  You can’t deliver the baby and then terminate.  Simple.  We’re not eroding women’s right, we’re making sense.

The rights of women, just like those of men, aren’t unlimited.  You can’t just whatever you want (to your body or someone else’s).  Rules for this sort of thing aren’t necessarily a bad thing.

Now, whether this signals the imminent demise of Roe remains to be seen.  We can only hope.  Not because I think free and unfettered access to abortion is a bad thing, I just think that an issue this complex deserves a little nuance, especially in the law.  “A woman’s right to do whatever she damn well pleases” doesn’t really have that nuance.  I firmly believe there are other rights and interests in play that deserve consideration, and that there are myriad possibilities and situations that need to be given thought and consideration.  Like I said, nuance.

I only hope that the elected officials at that time will have the same sense of nuance that I do.  Unfortunately, too many people see in black and white nowadays.  And that’s how we’re governed; in absoluted and without nuance.


6 responses to “When Is It Too Late?

  1. This new blog format is really getting to you. A little change and you’ve become a social conservative.

  2. I actually don’t believe in nuance when it comes to constitutional law. I agree with you though that the state clearly has an interest in regulating these types of abortions; and since doing so will not interfere with a woman’s ability to get an abortion (she can use a different method, which is more common and more often used anyway), this decision does not run afoul of Casey or Roe.

  3. I agree that the lines should be clearly drawn when it comes to Constitutional Law, but I think those lines should be drawn with at least an implicit understanding of the nuance of real life.

  4. SCOTUS – nice. Haven’t heard that since law school.

  5. The South Park episode where Mrs. Cartman wants to have a 40th-trimester abortion was just on.

  6. That was a really good post.

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