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Blackmun's bane

By Mark M. Trapp
web posted January 27, 2003

"The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall. The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp."
-- Statement of Nurse Brenda Pratt Shafer, quoted in Stenberg v. Carhart, 530 U.S. 914, 1008 (2000)(Thomas, J., dissenting).

Thirty years after Roe v. Wade invented the legal right to abortion, it is time to take stock of how far we have come. Perhaps it would be more accurate to say how far we have fallen. As the above statement indicates, in America in 2003 a woman has a constitutional right to kill her half-born child in a manner that would make a serial killer smile, all in the name of Roe v. Wade.

It's true – a woman today has the right to have her baby delivered, all except the head. The abortionist then stabs the baby in the head, sucks out its brains, and fully delivers the now dead infant. Not only is this legal through the ninth month of pregnancy, but according to the Supreme Court of the United States it is a fundamental right, ranked with freedoms of religion and speech.

I was recently pondering this fact when I decided to reread the opinion in Roe. I wanted to see if it really stood for the idea that this barbarous act was a constitutional right. In doing so, I made a remarkable discovery – the petitioners in that case did not challenge a statute that prohibited the killing of a child during the process of birth.

Intrigued, I decided to read the oral arguments to see if they shed any light on why this statute was not challenged. In doing so, I made another remarkable discovery. It turns out that the justices who decided Roe v. Wade rejected the notion that a woman had a right to kill a partially-born child. Indeed, from their statements it is clear that they never intended or imagined that their decision would one day lead to the constitutional right to kill living, breathing, nearly-born infants, such as occurs in a so-called partial-birth abortion.

The case of Roe v. Wade originated in Texas. At that time, the Texas Penal Code contained six statutes dealing with abortion. Roe challenged only five of these statutes. The statute which was not attacked, and is still on the books, reads:

Whoever shall during the parturition of the mother destroy the vitality or 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.

To my knowledge, no one has ever explained why this statute was not challenged, but there are only two possibilities: either the pro-abortion petitioners felt the statute was constitutional, or they felt it was unconstitutional.

If they felt the statute was constitutional (which makes the most sense, as they did not challenge it), presumably it would remain so today. In that case, there needs to be an explanation as to how partial-birth abortion avoids conflict with this statute.

The other possibility is that they believed the statute to be unconstitutional, but decided not to challenge it. The only reasonable explanation for this is that they did not dare assert that the as yet non-existent right to abortion also included the right to kill a child in the process of being born, lest it jeopardize their chances of prevailing. After all, thirty years ago, abortion was a criminal act in all fifty states. Asserting that a woman had the right to kill a nearly-born child when she did not yet have even the right to an abortion would not have gone over very well, with either the Court or the public at large.

In any event, the fact remains that when given the chance thirty years ago, even the "pro-choice" crowd did not claim that abortion rights included killing a half-born child.

Not only that, but the justices who decided Roe rejected the idea that such an action could be anything other than criminal. During the oral arguments of Roe, the Court addressed the above-noted statute. Specifically, the justices questioned whether the term "abortion" included killing a child during the birth process.

MR. JUSTICE MARSHALL: What does that statute mean?
MR. JUSTICE MARSHALL: What does it mean?
MR. FLOWERS: I would think that--
MR. JUSTICE STEWART: That it is an offense to kill a child in the process of childbirth.
MR. FLOWERS: Yes, sir. It would be immediately before childbirth, or right in the proximity of the child being born.
MR. JUSTICE MARSHALL: Which is not an abortion.
MR. FLOWERS: Which is not--would not be an abortion. Yes, sir, you're correct, sir. It would be homicide.

Not a single justice, or counsel for petitioners, questioned the statement that such an action "would be homicide." Even more importantly, if killing a child "immediately before childbirth, or right in the proximity of the child being born" is "not an abortion," as Justice Marshall said, it is not constitutionally protected, even in the twisted universe of Roe.

This is so because the Court has always defined the abortion right created by Roe as the woman's right to "terminate her pregnancy." This was true in Roe, and virtually every other abortion case decided in the following twenty-seven years. However, if the abortion right is limited to the right to "terminate a pregnancy," then partial-birth abortion has no constitutional basis.

This is where the distinction between pregnancy and birth becomes crucial. The distinction is this – once the birth process starts, there is no longer a pregnancy to terminate.

Medically speaking, the stages of pregnancy and birth are separate and distinct. For instance, Taber's Cyclopedic Medical Dictionary, 18th Edition, defines pregnancy as "the condition of carrying an embryo or fetus in the uterus" and birth as "the act of being born; passage of a child from the uterus." Thus, once the child has passed from the uterus, there is no longer a pregnancy capable of termination. The pregnancy stage has ended, replaced by the birth stage.

Importantly, the child does not have to be completely separated from the mother before there can be a birth. As shown above, birth is merely the passage of an infant from the uterus. Once it has passed from the uterus, an infant still must be delivered through the vaginal canal to complete the birth process. Indeed, Taber's defines "complete birth" as "The instant of complete separation of the body of the infant from that of the mother, regardless of whether the cord or placenta is detached."

In sum, while an infant is in the uterus you have a pregnancy. Once the child passes from the uterus, and before the complete separation of the infant from its mother you have birth. Finally, once the child is completely separated from its mother you have complete birth.

These definitions establish that so-called "partial-birth abortions," as Justice Marshall recognized, are not really abortions at all. Indeed, Taber's defines abortion as "The spontaneous or induced termination of pregnancy[.]" Clearly, abortion is only possible, medically and legally, if there is a pregnancy to terminate. Once an infant has moved beyond the uterus and into the birth canal, there is no longer a pregnancy, and hence, no longer a right to terminate a pregnancy through abortion.

Thirty years ago, even those who first created the right to abortion understood this. However, three decades of constitutionally protected abortion on demand has proven to be the slipperiest of slopes. Today a woman has the constitutional right, not merely to "terminate her pregnancy," but to kill a child in the process of being born, even after a pregnancy has ended.

I believe that the Supreme Court was aware of this medical distinction between pregnancy and birth when in 2000 it dealt directly with the partial-birth abortion issue. In Stenberg v. Carhart the Court invalidated a Nebraska statute (and those of twenty-nine other states) prohibiting partial-birth abortion. As noted above, the Court had for the more than twenty-seven years since Roe v. Wade repeatedly defined the right to abortion as the right to choose whether or not to "terminate a pregnancy." However, in Stenberg, Justice Breyer, citing Roe v. Wade, cut short the usual definition, stating simply that "this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose." Glaringly absent from Breyer's formulation of the abortion right was the previously ever-present words "to terminate her pregnancy."

Why did Justice Breyer phrase the right in this new manner? I believe that he recognized that this was no mere termination of a pregnancy. Rather, this was killing a child in the process of being born, an action never sanctioned by the Court, even in Roe. Because the Court was no longer dealing with the right to "terminate a pregnancy," those words no longer had application. Henceforth, the abortion right would begin and end with "the woman's right to choose." Period.

Justice Cardozo once remarked upon "the tendency of a principle to expand itself to the limit of its logic." This illustrates the most insidious aspect of abortion. If the principle behind an abortion is simply the woman's right to choose, then where does such a right stop? For thirty years, we have stood by while Roe reached out of the womb, into the birth canal, and now outside of the mother to expand the right of a woman to be rid of an unwanted child. How far will we let this go before we stop it?

Abortion opponents used to refer to abortion as the "silent scream." At the rate we are going, I wonder how much longer the screams will remain silent.

Mark M. Trapp is a practicing attorney in South Carolina and be reached at heytrapp@hotmail.com.

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