55 Pages Posted: 8 Apr 2009 Last revised: 30 Aug 2010
In explaining his constitutional objection to Wisconsin's partial-birth abortion ban, Judge Richard Posner stated:
We . . . do not doubt that if in the course of a normal labor the mother asked her obstetrician to kill the baby in the birth canal and he did so, the state could criminalize this act as infanticide. . . . But [in a partial-birth abortion] . . . there is no issue of infanticide, of killing a live baby that is half-born.
Posner thus contrasts killing during "normal labor" with partial-birth abortion. The former can be constitutionally prohibited, but the latter cannot. Why the distinction? Because to Posner the former involves "killing a live baby that is half-born," whereas the latter does not.
This Article will show that Judge Posner is correct to assert that killing a baby in the midst of the birth process is not constitutionally protected. The Supreme Court in Roe v. Wade strongly implied that the abortion right is not this broad, and Judge Posner instinctively agrees.
But Judge Posner is wrong to say that partial-birth abortion does not kill "a live baby that is half-born." This Article will demonstrate that the partial-birth procedure in fact does kill a baby during its birth. Ban proponents have therefore been correct in their long-standing argument that the partial-birth procedure is not really an abortion. Consequently, Roe, properly understood, is inapplicable to partial-birth abortion bans.
Courts, however, including the United States Supreme Court in Carhart II, have nonetheless routinely used Roe/Casey's analytical framework to evaluate bans. This common mistake completely undermines current partial-birth abortion jurisprudence. The rational basis test, not Roe/Casey, is the proper evaluative tool. Using the correct standard could very well have significant consequences for future challenges to the Federal Ban and to the bans of the various states.
Keywords: Jurisprudence, Federal Ban, Abortion
JEL Classification: K40, I10, I18
Suggested Citation: Suggested Citation
Calhoun, Samuel Wolfe, 'Partial-Birth Abortion' is Not Abortion: Carhart II's Fundamental Misapplication of Roe'. Mississippi Law Journal, Vol. 79, No. 4, 2010; Washington & Lee Legal Studies Paper No. 2009-03. Available at SSRN: https://ssrn.com/abstract=1374539