line between abortion and infanticide

[MARK STEIN]

What about the following justification for Carhart II (not necessarily my own position):  The government's interest in prohibiting infanticide is greater than its interest in prohibiting abortion, so its interest in prohibiting procedures that are sort of like infanticide and sort of like abortion is greater than its interest in prohibiting mere abortion procedures.  As intact D&E is between infanticide and abortion, the government can prohibit this procedure with less protection for a woman's health than if it was prohibiting a pure abortion procedure.

The closest Justice Kennedy comes to such an argument is the following paragraph:

....
The Act's ban on abortions that involve partial delivery of a living fetus furthers the Government's objectives. No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life. Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition. Congress determined that the abortion methods it proscribed had a "disturbing similarity to the killing of a newborn infant," Congressional Findings (14)(L), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769, and thus it was concerned with "draw[ing] a bright line that clearly distinguishes abortion and infanticide." Congressional Findings (14)(G), ibid. The Court has in the past confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned. Glucksberg found
 reasonable the State's "fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia." 521 U. S., at 732-735, and n. 23.
....

Suppose that during a late-term abortion procedure, the fetus slips all the way out.  Can the state punish the killing of such a fetus as murder, even if it is not viable?  I vaguely remember that such events have occurred, and that doctors choose to let the fetus die, rather than euthanizing it, for fear of being charged with a crime.  If in fact the killing of an accidentally-delivered non-viable fetus can be punished as murder, while the killing of a non-viable fetus in utero is a protected constitutional right, then why not treat an intermediate procedure as something between murder and a constitutional right?

In response, it could be said that the reason the state has a greater interest in prohbiting infanticide than in prohibiting abortion is because the prohibition of abortion violates the constitutional liberty of women and the prohibition of infanticide does not.  Since the woman's liberty interest is present even when the fetus is aborted after being partially delivered alive, intact D&E should be treated as abortion, not as something between infanticide and abortion.

I would find such a response more convincing than Justice Ginsburg's argument, in dissent, that intact D&E is no more like infanticide than other abortion procedures.  It is more like infanticide, unless the interest of the woman rather than the location and status of the fetus determines the line between abortion and infanticide.

Mark
  
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