by Laura Rore, Esq.,
Former LLDF Intern and Post-Gradute Fellow

I. Introduction

During the Nineteenth Century, Americans were in a moral crisis over the issue of slavery. Many supporters of slavery justified its practice on the basis that African Americans were allegedly inferior. The United States Supreme Court upheld the idea of property rights in another human being in Dred Scott v. Sandford. The United States Constitution condoned slavery in the Three-fifths Compromise, which considered African Americans only three-fifths of a person for purposes of representation in Congress. The Fugitive Slave Act assisted owners of slaves in retrieving their escaped ‘property’. Today, over one hundred years since the Thirteenth Amendment abolished slavery, citizens consider the justifications and support of slavery an abomination, yet not so long ago this heinous institution was an acceptable way of life in our society.

Presently, abortion is an accepted practice in our society, though many consider it to be as abhorrent as slavery. Abortion rose to the height of national controversy in 1973 when the majority of the United States Supreme Court in Roe v. Wade determined that an implicit right of privacy found in the Fourteenth Amendment to the United States Constitution encompasses a woman’s right to abort her unborn child. In 1992, Planned Parenthood of Southeastern Pennsylvania v. Casey reaffirmed the central holding of Roe v. Wade, with modifications to the approach in analyzing abortion laws that had been put forth in the earlier decision. Additionally, the Court confirmed a state’s power to restrict abortions after fetal viability, as long as there is an exception for the life or health of the woman. In 2000, the Court in Stenberg v. Carhart struck down a Nebraska statute restricting the right to obtain a particular type of abortion procedure commonly known as partial-birth abortion. The Court found the statute unconstitutional for two reasons. First, there was no exception for the health of the mother and second, the statute was construed as an undue burden on a woman seeking an abortion.

There are strong differences of opinion over the issue of abortion in general, just as there were over slavery. There is a strong argument that the holding of Roe v. Wade itself is unconstitutional. However, certain abortion procedures of post-viable fetuses, commonly known as partial-birth abortions, are even more controversial. Partial-birth abortion involves: “1) deliberate dilation of the cervix, usually over a sequence of days; 2) instrumental conversion of the fetus to a footling breech; 3) breech extraction of the body excepting the head; and 4) partial evacuation of the intra cranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.”

In Stenberg, Justice Thomas in his dissent cited the American Medical Association (A.M.A.) as follows: “The partial birth gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body.” Moreover, Justice Thomas stressed that thirty states have agreed with this view since they have attempted to ban partial-birth abortions in their respective states. However, since the Court struck down Nebraska’s partial-birth abortion ban in 2000, other states’ bans against partial-birth abortion have also been struck down, thus resulting in even less protection for post-viable fetuses than existed prior to Stenberg.

Presently, Congress is considering H.R. 760 and S. 3, which are identical bills prohibiting partial-birth abortions without a health exception. Both bills are being presented under Congress’s Commerce Clause power. If one of the current bills, or a modified version thereof, passes and is signed into law by President Bush, it is imperative that such a statute withstand constitutional challenges under case law and challenges to Congress’s power to pass such a bill in order to ensure protection of at least some of the innocent victims of the Roe v. Wade decision..

Part II of this article will begin with a brief analysis of the main cases surrounding the abortion issue, beginning with Roe v. Wade and concluding with Stenberg v. Carhart. Part III will demonstrate that there is a need for a ban on partial-birth abortions at the federal level. In Part IV the proposed partial-birth abortion ban will be evaluated under case law and Part V will conclude with an examination of Congress’s power to enact a partial-birth abortion ban.

II. Relevant Case Law

A. Roe v. Wade

The Court in Roe v. Wade determined that there is a constitutional right of privacy found in the Fourteenth Amendment that encompasses a woman’s right to choose to terminate her pregnancy. The Court stated that the woman’s right to privacy outweighs a state’s interest in protecting the potential life of a pre-viable fetus. However, the Court also recognized that the state has an interest in the potential life of the fetus that grows as the gestational age of the fetus increases. The Court held: “(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician; (b) For the stage subsequent to approximately the end of the first trimester, the state, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health; and (c) For the stage subsequent to viability, the state in promotion of its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

There has been considerable controversy over this decision. The controversy has not only been based on the morality and ethics of abortion, but has also been over the constitutionality of Roe itself. Two main concerns were addressed by the dissenters in Roe. First, Justice White in his dissent stated that there is nothing in the language or history of the Constitution to support that there is a constitutional right for pregnant mothers to abort their babies. This concern was elaborated on by the dissenters in Casey, who stated, “We believe that Roe was wrongly decided, and that it can and should be overruled...”

Casey’s dissenters contended that there is not a fundamental right to an abortion in the Constitution. They explained that there has been “...a state of confusion and disagreement [in the court system] that warrants a re-examination of the ‘fundamental right’ accorded to a woman’s decision to abort a fetus in Roe, with its concomitant requirement that any state regulation of abortion survive ‘strict scrutiny.’” The Roe Court’s determination that there is a fundamental right to an abortion is based on a liberty interest under the Due Process Clause of the Fourteenth Amendment. The Court explained that, “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”

However, the dissenters in Casey argued that a right to an abortion is not a liberty interest that is fundamental. The dissenters explained that there are two inquiries that the Court makes to determine whether a liberty interest under the Due Process Clause is fundamental. First, whether a liberty interest is implicit in the concept of ordered liberty. Second, whether a principle of justice is so rooted in the traditions and conscience of our people as to be ranked as fundamental. Concerning the first inquiry, the dissenters stated, “We are now of the view that, in terming this right fundamental, the Court in Roe read the earlier opinions upon which it based its decision much too broadly. Unlike marriage, procreation, and contraception, abortion involves the purposeful termination of potential life. One cannot ignore the fact that a woman is not isolated in her pregnancy, and that the decision to abort necessarily involves the destruction of a fetus.” In other words, the destruction of life distinguishes abortion decisions from the liberty interests recognized in the Due Process Clause prior to Roe; therefore, the liberty interest does not encompass a woman’s right to abort her baby.

The dissenters in Casey went on to explain that the second determination as to whether a right is fundamental is not met either because the right to abort a fetus is not a ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ They pointed out that: “At the time of the adoption of the Fourteenth Amendment, statutory prohibitions or restrictions on abortions were commonplace; in 1868, at least 28 of the then 37 states and 8 Territories had statutes banning or limiting abortion. By the turn of the century virtually every State had a law prohibiting or restricting abortion on its books.”

Finally, if the dissenters are correct that the ‘right of privacy’is not a fundamental right, then the standard of review used in Roe was wrong. Referencing the right of privacy, Justice Rehnquist in his dissent stated: “I have difficulty in concluding that the right of ‘privacy’ is involved in this case.” He then reasoned, “If the Court means by the term ‘privacy’ no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of ‘liberty’ protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty.” Justice Rehnquist further explained that in the area of social and economic legislation the standard of review of such legislation traditionally applied is whether or not a law such as the one challenged in Roe is rationally related to a valid state objective.

In other words, the legislation should be upheld as long as there is a rational reason for the law. This is a lesser standard of review than was used in evaluating the Texas criminal abortion statute in Roe. Since the majority admitted that states do have an interest in the potential life of the fetus, the statute should not have been held unconstitutional because the statute was rationally related to a valid state interest. Justice Rehnquist and Justice White then concluded that the issue of abortion is more appropriate for the legislative branch of our government.

If the U.S. Supreme court wrongly decided Roe v. Wade based on the foregoing, then the premise of a constitutional right to an abortion is incorrect and the dissenters in Roe were correct that individual state legislatures that represent the will of the people should decide the issue of which is more important - the life of the developing baby or the wishes of the pregnant woman. However, due to U.S. Supreme Court decisions since Roe, including Casey, and quite recently, Stenberg v. Carhart, it does not seem likely that the holding in Roe will be overturned in the near future regardless of concerns over the soundness of its constitutional basis.

B. Planned Parenthood of Southeastern Pennsylvania v. Casey

In 1992 the U.S. Supreme Court again faced the issue of abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey. The Casey Court reaffirmed a woman’s virtually unfettered right to abort a pre-viable fetus. One of the main reasons cited by the Court for upholding Roe was stare decisis. This reason lends support to opponents of Roe, who contend the decision is not constitutionally sound. Chief Justice Rehnquist in his dissent stated, “Instead of claiming that Roe was correct as a matter of original constitutional interpretation, the opinion therefore contains an elaborate discussion of stare decisis.” Dred Scott v. Sandford and Plessy v. Ferguson were eventually overturned and now thought not only unconstitutionally sound, but abhorrent in their reasoning. Today, it would be unacceptable to uphold those cases on the basis of stare decisis. Therefore, there may come a time when Roe is also overturned due to a realization that its reasoning was not only faulty, but is as abhorrent as Dred Scott and Plessy.

Though Roe was not overruled as advocated by the dissenters there were some gains for opponents of Roe in the Casey decision. For instance, the Court upheld the Pennsylvania statute’s informed consent and parental consent provisions. Moreover, the Court reaffirmed a state’s right to restrict or even proscribe abortions of post-viable fetuses as long as there is an exception for the health or life of the woman. The Court also reaffirmed a state’s legitimate interest in protecting the life of the fetus from the beginning of the pregnancy. Viability was affirmed as the compelling point of a state’s interest in the life of the fetus and the Court pointed out that a woman who fails to obtain an abortion before viability has, as a practical matter, consented to a state’s intervention on behalf of the developing child.

The Casey Court also made a significant change in the approach that states should follow in determining when it may be feasible to restrict a woman’s right to an abortion. In Roe v. Wade, the Court used a trimester approach to govern abortion regulations. The Casey Court rejected this method because it was considered too rigid and at times was contrary to a state’s permissible exercise of its power to restrict abortions. Furthermore, the Court recognized that there is “a substantial state interest in potential life throughout the pregnancy.” The Court then replaced the trimester framework with an undue burden standard in order to evaluate a state’s restriction on abortion. An ‘undue burden’ is defined as a state regulation that has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus.”

The Casey Court expanded the state interest in the life of the fetus by recognizing that the states have an interest in protecting the fetus throughout gestation. Additionally, the undue burden standard delineated in Casey is inapplicable if the fetus is post-viable. As such, the Court seemingly began to place a higher value on the life of an unborn child than it had in Roe. However, due to the decision in Stenberg v. Carhart, there are concerns that the Court’s recognition of the importance of the ‘potential’ life of the unborn is dissipating. In Stenberg, a state’s right to regulate or proscribe certain types of abortion procedures of post-viable fetuses that are analogous to infanticide has been severely restricted.

C. Stenberg v. Carhart

In Stenberg v. Carhart the Supreme Court struck down a Nebraska statute prohibiting an abortion procedure commonly known as ‘partial-birth abortion’. The Court struck down the Nebraska statute because it did not contain an exception for the health of the woman and because the Court construed the statute to include the commonly used dilation and evacuation (D & E) method of abortion; therefore, making the statute applicable to abortions of pre-viable fetuses and imposing an undue burden in the path of a woman seeking to abort a pre-viable fetus.

Though the term partial-birth abortion is not a medical term, it is generally understood to refer to the dilation and extraction (D & X) method of late term abortion. The procedure involves aborting a fetus after it has been partially delivered. In congressional records of March 12, 2002 on the Born-Alive Infants Protection Act of 2002, H.R. 2175, the procedure is described as follows: “Partial-birth abortion is a procedure in which a doctor delivers an unborn child’s body until only the head remains inside of the mother, punctures the back of the child’s skull with scissors and sucks the child’s brains out before completing the delivery.”

The Nebraska statute at issue in Stenberg prohibited “deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child.” The majority interpreted this definition of partial-birth abortion as inclusive of not only D & X, but the D & E method of abortion.

A D & E involves extraction of the fetus using instruments, and after the fifteenth week of gestation, the potential dismemberment of the fetus. Justice Kennedy, with whom The Chief Justice joined, explained in his dissent, “The fetus, in many cases, dies just as a human adult or child would, it bleeds to death as it is torn limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off. Dr. Carhart has observed fetal heartbeat via ultrasound with ‘extensive parts of the fetus removed’ and testified that mere dismemberment of a limb does not always cause death because he knows of a physician who removed the arm of a fetus only to have the fetus go on to be born ‘as a living child with one arm’”

Referencing the Nebraska statute’s definition of partial-birth abortion, the majority stated, “We do not understand how one could distinguish, using this language, between D & E (where a foot or arm is drawn through the cervix) and D & X (where the body up to the head is drawn through the cervix).“ The majority then concluded that the language of the statute was overly broad and could include D & E procedures of pre-viable fetuses; therefore, the Court held that the statute was an undue burden on women seeking to abort pre-viable fetuses and held the statute unconstitutional.

Partial-birth abortion procedures are used on fetuses that may be post-viable, such as 20 to 26 weeks gestation. Dr. Nathan Hoeldtke, for the Pro-Life Maternal-Fetal Medicine Focus Group stated that babies as young as 23 weeks gestation often survive. An obstetrician-gynecologist in Northern California explained that a fetus’s lungs are maturing at 21 to 22 weeks gestation. The physician also explained that there are some abortions that are performed on healthy fetuses up until 32 weeks gestation. Sometimes babies who have survived abortions have actually been left to die.

The Court in Stenberg admitted that the foregoing descriptions of the abortion procedures “may seem clinically cold or callous to some, perhaps horrifying to others.” The Casey Court held that viability is the point where a state’s interest in the potential life of the fetus outweighs the supposed privacy rights of the woman. Yet the Court struck down a statute that only proscribed one of the procedures that the Court thought many might find ‘horrifying’ and some members of the Court found gruesome. How can the Court, which recognized a state’s interest in the life of a post-viable fetus prevent a state legislature from prohibiting such procedures? How far has the holding in Roe v. Wade taken us as a society?

Part III. The Need for Federal Legislation

A. Partial-Birth Abortion & Stenberg v. Carhart

The method of abortion commonly known as partial-birth abortion is a procedure that many consider close to infanticide. It is a procedure that is done on infants that are likely post-viable. Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers (1997), estimated that 3-5,000 partial-birth abortions are performed annually in this nation. Furthermore, the partial-birth abortion method has been used at the seventh month of pregnancy and later. In June 1995, the late Dr. James McMahon, in a written submission to the House Judiciary Committee, acknowledged that he performed partial-birth abortions on babies with no ‘flaw’, even in the third trimester, for such reasons as the “mere youth of the mother or for psychiatric difficulties.”

Prior to Stenberg v. Carhart, many states had statutes that attempted to ban partial-birth abortions. Since the decision several states’ laws prohibiting partial-birth abortions have been found unconstitutional. Therefore, it is now more difficult than prior to Stenberg for states to restrict or to prohibit certain types of abortion procedures on post-viable fetuses. As pointed out in Part II, a California obstetrician-gynecologist stated that abortions are performed up to 32 weeks gestation in some cases. According to one source at the Pregnancy Consultation Center in Northern California, abortions are performed at a San Francisco, California bay area hospital on healthy fetuses past 24 weeks. However, this information could not be confirmed because the claim was refuted by a spokesperson at the hospital who stated that abortions are not performed, absent health reasons on the part of the woman or fetal anomaly, past 23 weeks.

One reason that may account for the different views as to whether or not abortions are performed only when there is a problem with the woman’s health may be that such exceptions in legislation prohibiting abortions of post-viable fetuses are interpreted broadly and include mental health reasons rather than solely serious physical health problems. A source at the Women’s Health Center in Kansas explained that there are no limits on abortion with regard to gestational age if there is a fetal anomaly, or there is a serious maternal health problem. The person went on to explain that ‘serious maternal health’ problems could include not only physical disorders, but mental and emotional health disorders that were compelling.

B. The Health Exception & The Partial-Birth Abortion Act of 2003

In Stenberg the Court struck down the statute due, in part, to the lack of a health exception. However, an exception for mental or emotional health reasons would negate the effect of any ban on post-viable abortions, including partial-birth abortions. In his dissenting opinion in Stenberg, Justice Thomas discussed the pitfalls of a broad health exception. He explained, “The exception swallows the rule. In effect, no regulation of abortion procedures is permitted because there will always be some support for a procedure and there will always be some doctors who conclude that the procedure is preferable.” Dr. Nathan Hoeldtke, M.D. for the Pro-Life Maternal-Fetal Medicine Focus Group confirmed Justice Thomas’s concerns when he explained that most states have a limit on abortions after some point, but “most have exceptions for maternal health, which...can be construed to mean just about anything, including psychological distress.” The problem of the “exception swallowing the rule” is the reason that the National Right to Life Committee (NRLC) does not support bills restricting late term abortions that include a health exception. Rather, the NRLC supports a ban on partial-birth abortions that does not include a health exception.

H.R. 760 the Partial-Birth Abortion Ban Act of 2003, sponsored by Congressman Steve Chabot, defines partial-birth abortion as follows: “(A) the person performing the abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus...” S. 3 is an identical bill sponsored by Senator Rick Santorum and references in this article to H.R. 760 include S. 3.

H.R. 760 proscribes both the D & X and intact D & E procedures since it addresses both head first and breech presentation of the fetus. If the bill becomes law, partially born infants will be protected at the federal level from procedures that the Court in Stenberg described as “clinically cold or callous to some, perhaps horrifying to others” and that many consider akin to infanticide. Furthermore, there is not a health exception that would allow mental health problems to negate the ban. Additionally, there are alternatives for women with serious physical health problems. Dr. Curtis Cook, who practices maternal-fetal medicine, stated, “To my knowledge, and in my experience, this particular procedure described as partial-birth abortion is never medically necessary to preserve the life or future fertility of the mother, and may in fact threaten her health or well being or future fertility. In my opinion...there are choices and there are alternatives to the partial-birth abortion procedure that do not require the use of what has now been demonstrated as a potentially dangerous and completely unstudied and unnecessary procedure.”

A receptionist at the National Abortion Federation stated that abortions are performed up to 26 weeks gestation, which is past the point of fetal viability. The receptionist added that some abortions are performed later in gestation if there are fetal anomalies or the mother’s life is in danger. However, many fetal anomalies that were once incurable are now able to be remedied and the infants can be born without serious problems, thus negating any alleged justification for a partial-birth abortion of a post-viable fetus due to a fetal anomaly. According to congressional findings based on extensive evidence included in H.R. 760, there are no special medical or health indications that warrant a partial-birth abortion. For example, regarding hydrocephalus, Dr. Cook was quoted in Doctors Report the Medical Facts About Partial-Birth Abortion as stating: “hydrocephalus...excessive cerebrospinal fluid...that causes a very large-shaped head in proportion to the rest of the body...These patients can be safely delivered by cesarean section. They can even be delivered safely vaginally. We can do that by first decompressing some of the fluid around the baby’s head...” Furthermore, should a situation arise in which a mother’s life is threatened, H.R. 760 provides a thorough exception to its prohibition of partial-birth abortion.

However, some groups still oppose a ban on partial-birth abortions even though the bill contains adequate safeguards for the woman. Additionally, even if modifications are made to the bill that include an exception for the physical health of a woman, groups such as Planned Parenthood will still not re-consider their opposition to a ban on partial-birth abortions. A spokesperson for Planned Parenthood stated that the organization would not support any bill that takes away the discretion of the physician. Opposing the bill on the basis of allowing a physician complete discretion is illogical when it is commonly known that physicians do not have, and should not have, complete discretion with regard to medical care. For instance, there are regulations that prohibit other types of ‘medical’ practices such as female genital mutilation and assisted suicide.

Moreover, when asked about fetal pain or the extent of viability of the fetus, the spokesperson repeated the above response with no room for compromise or discussion. Unfortunately, even in light of the advancements of medical knowledge since 1973 when Roe v. Wade was decided, the spokesperson for Planned Parenthood was unwilling to discuss any issue with regard to a woman’s virtually unlimited right to an abortion - even of a post-viable fetus who might experience not only death, but great pain as well during a partial-birth abortion. It should be a cause for concern when any group supports or opposes a position solely on the basis of a preconceived stance on an issue and without consideration of new information.

C. Advancements in Medical Knowledge

Information with regard to fetal pain has grown since Roe was decided. According to Dr. Jean Wright, a practicing pediatric intensive care physician, “Ultrasonographic findings report specific fetal movements in response to needle punctures in utero. Moreover, a controlled study of intrauterine blood sampling and blood transfusions in fetuses between 20 and 24 weeks of gestation showed hormonal responses that were consistent with fetal perception of pain, and were correlated with the duration of the painful stimulus. Pre-term neonates born at 23 weeks gestation show highly specific and well coordinated physiologic and behavioral responses to pain, similar to those seen in full term neonates, older infants, and small children.”According to Dr. Wright, current data “indicate that pre-term neonates have greater pain sensitivity than term neonates or older age groups.”

Other physicians, including Dr. Sheila Carey-Kuzmic, M.D., Pediatrics, confirm Dr. Wright’s findings. Dr. Carey-Kuzmic explained, “The majority of babies aborted by this [partial-birth abortion] procedure are alive and feel pain up until the end of the procedure.” Dr. William J. Cashore, M.D., Neonatology, Professor of Pediatrics, Brown University, stated, “Manipulation to a partial breech delivery by a gloved adult hand probably hurts the fetus before the brain is destroyed. From the viewpoint of a neonatologist, the procedure as described sounds cruel and gruesome, and probably hurts.”At a hearing on the Partial-Birth Abortion Ban Act of 2002, H.R. 4965, Dr. Cook stated, “Indeed several pediatric pain specialists and obstetrical anesthesiologists have stated that there is good evidence to support that this procedure [partial-birth abortion] would generate excruciating pain for the partially born infant.” In Stenberg, Justice Kennedy in his dissent reported, “Witnesses to the procedure [partial-birth abortion] relate that the fingers and feet of the fetus are moving prior to the piercing of the skull; when the scissors are inserted in the back of the head, the fetus’ body, wholly outside the woman’s body and alive, reacts as though startled and goes limp.”

Abortions are being performed on post-viable fetuses, many times via the intact D & E and D & X methods described above. Fetuses are now known to experience pain, which should tend to increase the states’interest in protection of post-viable fetuses. H.R. 760 seeks to ban these procedures that many consider gruesome and believe are akin to infanticide. Additionally, there is no mental health exception in H.R. 760, yet there is an adequate and thorough exception in cases where the mother’s life is in danger.

D. The Necessity of Federal Legislation

The Born-Alive Infants Protection Act of 2001, H.R. 2175, became law on August 5, 2002. This law was proposed, in part, due to the decision of Stenberg v. Carhart. The purpose of the law is to protect “all infants who are born alive by recognizing them as a person, human being, child or individual for purposes of federal law. This recognition [will] take effect upon the live birth of an infant, regardless of whether or not his or her development is sufficient to permit long-term survival and regardless of whether or not he or she survived an abortion.” This law was necessary because of reports of babies marked for abortion being left to die. In congressional records of March 12, 2002, Congresswoman Melissa Hart stated: “Unfortunately, babies involved in induced-labor abortions were left to die, even though those children were born alive.”

Further evidence of the reach of Roe v. Wade and the ramifications of Stenberg v. Carhart are demonstrated in the case of Planned Parenthood of Central New Jersey v. Farmer. In Farmer the legislature argued that Roe and Casey are inapplicable to partial-birth abortion procedures. Roe v. Wade distinguished between the process of being born in the Texas parturition statute and an unborn child. Notwithstanding this distinction, the Farmer court stated, “Positing an ‘unborn’ versus ‘partially born’ distinction, the Legislature would have us accept, and the public believe, that during a ‘partial-birth abortion’ the fetus is in the process of being ‘born’ at the time of its demise. It is not. A woman seeking an abortion is plainly not seeking to give birth.”

This statement by the Farmer court caused concern in Congress that fetuses marked for abortions would continue to be allowed to simply die, without any medical care or assistance. “Under the logic of these decisions [Stenberg and Farmer], once a child is marked for abortion, it is wholly irrelevant whether the child emerges from the womb as a live baby. That child may still be treated as though he or she did not exist, and would have not the slightest rights under the law, no right to medical care, to be sustained in life, or to receive any care at all. The right to abortion, under this logic, means nothing less than the right to a dead baby, no matter where the killing takes place.” Members of Congress also expressed concern about the views of Princeton University bioethicist, Peter Singer, who argues that “the life of a newborn baby is ‘of no greater value than the life of a nonhuman animal at a similar level of rationality, self-consciousness, awareness or capacity to feel.’ Thus, ‘killing a disabled infant is not morally equivalent to killing a person. Very often, it is not wrong at all.’”

This is how far Roe v. Wade has taken us as a society; therefore, it is a great achievement that the Born-Alive Infants Protection Act of 2001, H.R. 2175 has become law. Now it is necessary to support congressional efforts to protect innocent babies just inches away from a life independent of their mothers from the ramifications of Roe v. Wade and Stenberg v. Carhart. It is time to urge passage of H.R. 760 and proscribe the “gruesome” procedure known as partial-birth abortion and bring back some respect for the dignity of human life. Congressman Jim DeMint of South Carolina gave a brief speech regarding a previously proposed ban on partial-birth abortions, which sums up the goal of H.R. 760, “In Lincoln’s time, our nation deemed slaves sixty-percent human. We shackled their legs and beat their backs. We disposed of them as mere chattel, auctioning them like cattle and demanded they give their life and labor for our prosperity. Are we much different today? We deem innocent babies - with kicking feet and beating hearts - less than human. We dispose of them as useless, in pretentious compassion discarding them as unwanted.”

Part IV. Case Law Requirements

A. Undue Burden Standard

In Casey the Court held that state cannot impose an undue burden in the path of a woman seeking an abortion before the fetus attains viability. The majority in Stenberg determined that the Nebraska statute at issue in the case could be construed as applicable to D & E abortions of pre-viable fetuses; thus, the Court held the statute unconstitutional under the undue burden standard.

The majority explained that the statute prohibited “deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill an unborn child.”The Court stated that this language did not distinguish between D & E and D & X methods of abortion. “We do not understand how one could distinguish, using this language, between D & E (where a foot or arm is drawn through the cervix) and D & X (where the body up to the head is drawn through the cervix).”

H.R. 760 contains a more precise definition of a partial-birth abortion procedure. Partial-birth abortion is defined as “an abortion in which--(A) the person performing the abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or in the case of a breech presentation, any part of the fetal trunk past the navel is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.”

H.R. 760 does not contain the words “or a substantial portion thereof”to which the Stenberg majority objected. “Under the majority’s view, D & E is covered by the statute because when the doctor pulls on a fetal foot until it tears off he has ‘delivered’ a substantial portion of the unborn child and has performed a procedure known to cause death.” Clearly H.R. 760’s requirement of delivery of the entire fetal head or the fetal trunk past the navel precludes application of the ban to a D & E procedure, which by definition involves dismemberment of the fetus. “In a D & E, portions of the fetus are pulled into the vagina with the intention of dismembering the fetus by using the traction at the opening between the uterus and vagina.” Delivery of the fetus past the navel could not include a D & E procedure because the fetus is required to be a living fetus and an intentional dismemberment of a limb during the birth process would likely cause death. Justice Kennedy, in his dissent, described the D & E procedure as follows: “The fetus, in many cases dies just as a human adult or child would, it bleeds to death as it is torn limb from limb.” Therefore, since H.R. 760 distinguishes between a D & E and a D & X procedure, the bill is inapplicable to pre-viable fetuses, thus making the ban not subject to the undue burden standard.

B. Health Exception

The Stenberg Court also struck down the Nebraska statute because it did not contain an exception for the health of the mother seeking to obtain a partial-birth abortion. H.R. 760 does not contain a health exception. However, there is no need for an exception for the mother’s health in a ban on partial-birth abortions because evidence at congressional hearings demonstrates that partial-birth abortions are not medically necessary and Roe’s requirement for a health exception is applicable to the unborn, not the partially born.

When the United States Court of Appeals for the Eighth Circuit and the United States Supreme Court reviewed the trial court record of the Stenberg case the Court was required to review the findings of the trial court for clear error. “The question for the appellate court under Rule 52(a) [of the Federal Rules of Civil Procedure] is not whether it would have made the findings the trial court did, but whether on the entire evidence it is left with the definite and firm conviction that a mistake has been committed.”

Under the clearly erroneous standard of review, as long as the district court’s account of the evidence is plausible, the reviewing court may not reverse it even if the reviewing court disagrees with the findings of the trial court.

Therefore, the United States Supreme Court was required to accept the trial court findings notwithstanding the biased and speculative evidence presented by the plaintiffs. “It was argued by at least one set of amici [submitted by a number of medical organizations and doctors including the Physicians Ad Hoc Coalition for Truth and the Association of American Physicians and Surgeons] that the district court findings should be set aside as clearly erroneous….they argued that the findings regarding the benefits of D & X only relied upon the testimony of Dr. Carhart, the plaintiff, and the speculations of experts, and that the record was void of any controlled study or article from a peer-reviewed journal establishing that the D & X is superior in any way to the D & E procedure.”

Congress is not bound by the clearly erroneous standard of review. “Rather, the United States Congress is entitled to reach its own factual findings-findings that the Supreme Court accords great deference--and to enact legislation based upon these findings so long as it seeks to pursue a legitimate interest that is within the scope of the Constitution, and draws reasonable inferences based upon substantial evidence.” “It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.”

During extensive congressional hearings, evidence was brought forth that demonstrated a partial-birth abortion is not necessary to protect a woman’s health and may even pose significant health risks to women. “There exists substantial record evidence upon which Congress has reached its conclusion that a ban on partial-birth abortion is not required to contain a ‘health’exception, because the facts indicated that a partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman’s health, and lies outside the standard of medical care.”

Furthermore, there is no case law that requires a health exception in a partial-birth abortion statute. Roe v. Wade requires a health exception in laws that restrict a woman’s right to an abortion of a post-viable fetus. Roe v. Wade dealt specifically with Texas’s criminal abortion statute. Roe v. Wade did not address the Texas parturition statute defined as follows: “Whoever shall during parturition of the mother destroy the vitality of life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.”The Roe court explicitly distinguished between abortion and the parturition statute by noting that the “Texas parturition statute…was not under attack.“Moreover, when discussing the parturition statute during the 1972 second oral arguments of Roe, Justice Thurgood Marshall stated that killing a child in the process of birth “is not an abortion.”To this day Texas has a parturition statute that protects those in the birth process from being killed.

Parturition describes a child in the process of being born, which includes the definition of partial-birth abortion in H.R. 760. Furthermore, the Nebraska statute at issue in the Stenberg case was held to constitute an undue burden to a woman seeking an abortion because the Court construed the statute as applying to D & E abortions of pre-viable fetuses. Thus, the Court did not view the statute as a parturition statute. H.R. 760 requires the child’s head, or in the case of a breech presentation, the trunk of the child past the navel, to have completely emerged from the womb. It is evident that H.R. 760 requires the infant to be in the process of being born. Since H.R. 760 only addresses partially born infants, and does not include an unborn child, Roe v. Wade’s health exception is not applicable; therefore, there is no requirement that a ban on partial-birth abortions contain a health exception..

Part V. Congress’s Power to Enact Partial-Birth Abortion Legislation

A. Commerce Clause Power

Congress seeks to enact H.R. 760 under its Commerce Clause power by prohibiting partial-birth abortions “in or affecting interstate or foreign commerce.” U.S. v. Lopez identified three broad categories of activities whereby Congress may regulate such activities under its Commerce Clause power. “First, Congress may regulate the use of channels of interstate commerce; Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; Finally, Congress’s commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.”

In the case of Lopez, the Court struck down The Gun-Free School Zones Act of 1990 because Congress exceeded its power under the Commerce Clause. The Court stated that one of the problems with the statute was that it did not contain a jurisdictional element that would ensure that a firearm possession affected interstate commerce. In contrast, H.R. 760 contains a jurisdictional statement, which should satisfy the Court’s requirement that a physician affect interstate commerce or be involved in the use of the channels or instrumentalities of interstate commerce in his or her performance of a partial-birth abortion procedure. Since involvement with interstate commerce could be examined on a case-by-case basis, Congress’s power to enact a partial-birth abortion ban under its Commerce Clause power should be satisfied by the jurisdictional statement. However, if H.R. 760 becomes law, there may come a time when there is a challenge to Congress’s power to enact the law notwithstanding the jurisdictional element.

1. The Use of Channels of Interstate Commerce and/or The Instrumentalities of Interstate Commerce, or Persons or Things in Interstate Commerce

“The provision of abortion services is commerce. The entities that provide these services, including clinics, physicians’offices, and hospitals, purchase or lease facilities, purchase and sell equipment, goods, and services, employ people, and generate income.”Congress received testimony regarding abortion services from Professor David Smolin during hearings before the Judiciary Committee’s Subcommittee on the Constitution. Professor Smolin explained that, “Abortion services would generally be classed within the broader category of medical and health care services, for purposes of commerce clause analysis.“

In The Heart of Atlanta Motel, Inc. v. U.S., the Court found that Title II of the Civil Rights Act of 1964 is a valid exercise of Congress’s Commerce Clause power, in part, due to food or products used by a place of public accommodation having moved in commerce. Similarly, a physician who performs a partial-birth abortion needs to use various medical supplies and instruments during the course of the procedure that are likely to have moved in commerce. Furthermore, according to the National Abortion Federation, second and third trimester abortions, which include the partial-birth method of abortion, are done in clinics and occasionally in hospitals. Naturally, any procedure performed in a clinic or a hospital will include the use of a wide variety of materials and supplies, many of which involve the use of channels of interstate commerce and/or instrumentalities of interstate commerce.

Additionally, physicians may become qualified to practice medicine by the use of interstate channels. For example, physicians in California take an examination in order to become licensed that is administered by a private organization located in Texas. This could provide power under the Commerce Clause since the examinations need to be transmitted from Texas to other states and necessarily involves the use of channels or instrumentalities of interstate commerce. Another manner by which a physician may become subject to Congress’s Commerce Clause power is by the woman and/or physician crossing a state line for the purpose of obtaining a partial-birth abortion, thus, invoking the power by being a person in interstate commerce. Additionally, the transportation of persons between the states is not required to be commercial to be within the Commerce Clause power. Moreover, money used to pay for a partial-birth abortion that flows through interstate channels, or communication via the telephone, mails, or Internet, also subjects abortion procedures to Congress’s Commerce Clause power.

Finally, other connections to interstate commerce include organizations to which a physician may belong. For instance, many physicians belong to the American Medical Association (AMA), which engages in activities relating to the practice of medicine, such as providing up-to-date information on health and medical practices to physicians and to the public. Physicians from all over the United States are members of the AMA. Therefore, not only do many physicians receive information over interstate channels, such as the mails, Internet, and telephones, but due to their membership in a national organization, physicians as a class could be considered to be within the category of “persons or things in interstate commerce.”Furthermore, there are other national organizations that physicians are involved in to which the same rationale is applicable, such as The American College of Obstetricians and Gynecologists (ACOG). Finally, according to the Medical Board of California, there are many physicians who are licensed to practice medicine in more than one state. Such physicians would likely be considered to be in interstate commerce and be subject to regulation under Congress’s Commerce Clause power.

2. Activities Having a Substantial Relation to Interstate Commerce

A Court uses a rational basis standard of review to determine whether a statute regulates “activities having a substantial relation to interstate commerce” and is thus within Congress’s Commerce Clause power. “The Court must defer to a congressional finding that a regulated activity affects interstate commerce if there is any rational basis for such finding.”Therefore, the issue is whether Congress has a rational basis for concluding that an activity substantially affects interstate commerce.

Congress has a rational basis for determining that physicians performing partial-birth abortions substantially affect interstate commerce because such abortions demonstrate a clear disregard for human life. Justice Kennedy, in his dissent in Stenberg, supported Nebraska’s interest in prohibiting partial-birth abortions by maintaining that states have an interest in promoting respect for life. If the states have an interest in promoting respect for human life, then it follows that Congress may also have an interest in respect for human life and human life affects interstate commerce through many avenues, such as production, consumption, and travel.

Justice Kennedy also stated that a state may regulate the medical profession in order to ensure its members are viewed as healers that respect the dignity of life. If the states have a legitimate interest in regulating the medical profession to assure respect for human life, then when such a right is taken away, or made very difficult to achieve, Congress may deem it necessary to intercede to achieve the same goals: respect for human life and dignity in the medical profession. “The authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question”

Furthermore, Congress may be able to support its Commerce Clause power under the third prong in Lopez by pointing out that partial-birth abortions decrease the population. If people are prevented from completing the birth process, just inches and seconds away from life outside of their mothers, then interstate commerce will be affected by having fewer members of society who can contribute economically. According to abortion statistics from the Centers for Disease Control and Prevention, there were approximately 1,221,585 abortions performed in the United States in 1996. Of these abortions, 5.5%, or 67,000, were performed from the middle of the second trimester through the third trimester. The middle of the second trimester is roughly 18 to 19 weeks gestation, since the second trimester is considered by the National Abortion Federation as between 13 and 24 weeks pregnant. Babies born at 23 weeks gestation often survive. There is also evidence to support that fetuses subjected to partial-birth abortions can survive apart from their mothers: “...witnesses to the procedure (D & X) report seeing the body of the fetus moving outside the woman’s body.” “In 1999, Kansas abortionists reported they performed 182 partial-birth abortions on babies defined by the abortionists themselves as ‘viable,’ and they also reported that all 182 of these were performed for ‘mental’ (as opposed to ‘physical’) health reasons.”Therefore, at a minimum, 182 babies in the state of Kansas in 1999 would have survived on their own, and would have contributed to interstate commerce as both consumers and/or producers.

The instruments, supplies, materials, physicians’ examinations, and national membership organizations all involve the use of the channels of interstate commerce and/or the use of the instrumentalities of interstate commerce. Furthermore, physicians licensed in more than one state may be considered to be a person “in interstate” and the money paid to a physician for a partial-birth abortion may be a “thing in interstate commerce.”Finally, there is a rational basis that the performance of partial-birth abortions affects interstate commerce. Therefore, Congress has the power under its Commerce Clause to prohibit partial-birth abortions.

B. The Fourteenth Amendment

In Roe v. Wade, the Court stated, “[T]he word ‘person’, as used in the Fourteenth Amendment, does not include the unborn.”The Roe Court addressed only the unborn. The Casey Court did not change this, nor did the Stenberg court. Simply put, the U.S Supreme Court has never addressed the issue as to whether the definition of ‘person’in the Fourteenth Amendment includes a partially-born human being. In fact, the Court specifically stated that the Texas parturition statute, which addressed killing a child in the process of being born, was not at issue in the case. A child whose head has emerged completely from his or her mother or who has been delivered past his or her navel, is partially-born, not unborn. Thus, Roe v. Wade and its progeny are inapplicable to partial-birth abortion.

According to the Court in Roe v. Wade, if a fetus had been declared a person, then the fetus’s life would have been guaranteed by the Fourteenth Amendment. Therefore, since the Court has never declared a partially born baby to not be a person, that child is still a person for purposes of the Fourteenth Amendment and Congress can act under Section 5 of the Fourteenth Amendment to protect the lives of such children when a state has not done so or is unable to do so.

Part VI. Conclusion

“Ron Fitzsimmons, the executive director of the National Coalition of Abortion Providers...repudiated the claim that the partial-birth abortion procedure was used rarely and mostly in acute medical situations. He said those claims were merely a ‘party line,’ and were false. The truth, Mr. Fitzsimmons said, was that ‘in the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus.’”

The current bills in Congress, H.R. 760 and S.3, provide a precise definition of a partial-birth abortion, thereby avoiding any misapplication to the D & E method of abortion of pre-viable fetuses, and a thorough exception to protect the life of the mother. A health exception is not necessary because according to the weight of evidence, it is “never medically necessary”and the requirement of a health exception is not applicable to the aborting of the partially born, only of the unborn. Lastly, Congress has the power to enact the legislation under the Commerce Clause and the Fourteenth Amendment.

Justice Scalia discussed Dred Scott in his dissent in Casey v. Planned Parenthood in order to point out that at times it is necessary to make changes in rulings of the Supreme Court. In Dred Scott, the Court stated, “Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States and was not entitled as such to sue in this Court.” “He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made.”

Dred Scott has been severely criticized throughout the past century and a half. Similarly, Roe v. Wade has been severely criticized by many. The line that Roe v. Wade crossed has led to practices that a civilized society never would have contemplated, much less sanctioned prior to 1973. Among these practices is partial-birth abortion, a practice that many consider morally equivalent to infanticide. Therefore, we must urge our Congress to pass a ban on partial-birth abortions and prevent further slaughter of innocent babies just moments before they complete the birth process. A ban on partial-birth abortions will allow these tiny children to take their first breath of life and restore some respect for the dignity of all human beings.