Partial Birth Act Upheld

[HOWARD H SCHWEBER]

----- Original Message -----
From: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
Date: Thursday, April 19, 2007 1:33 pm
Subject: RE: RE: Partial Birth Act Upheld
Cc: Con Law Prof list <conlawprof at lists.ucla.edu>


> In response to Howard's final paragraph:
>   
>  It is in fact disputed whether intact D&E ever provides any increased 
> safety for the woman undergoing the abortion. Medical opinion is 
> divided. 

My understanding is that intact D&E is always at least as safe as any alternative, and in some cases is significantly safer.  That, at any rate, was the basis for my question.  Has anyone shown an argument in the medical literature suggesting that intact D&E is less safe -- sometimes, often, or usually -- than the alternative?)  The point about the possibility of an as-applied challenge is, of course, discussed in the opinion, but my inquiry had to do with the initial gain to state interests in potential life.  Mark identifies such an interest in this passage:

>  One benefit of the statute is that a line is preserved between 
> abortion and infanticide. Maintaining that line may save many lives of 
> born children in the future. 

This is a form of reasoning the rabbis call "putting a fence around the law" -- banning something not because it is itself wrong (or, in this case, that there is a benefit to be gained) but in order to ensure that future applications of rules to other situations will not be compromised.  It is, as I read it, a kind of slippery slope argument. about legislation.  

The problem I have with slippery slope arguments is that the "slipperiness" has to be justified, and rarely is.  Why is it difficult to draw an clear and principled distinction between one step and the next?  The case at hand concerned a method of performing abortion; there was, in other words, no question about whether the destruction of the fetus would take place, only how.  As a result, I have trouble seeing an actual moral question -- unlike the question of whether to permit abortions to occur at all, or at some stage of development.  In other words, the question of how an abortion may be performed seems to me quite different from the question of when an abortion can be permitted at all, and several steps removed from the idea of justifying the killing of a live child.  On the other hand, if in some (to me)  unimaginable case the killing of a child were to be found to be justified, I do not know that a ruling one way or another on the question that was actually before th
e Court would be implicated.

I suspect -- I certainly do not want to assume -- that Mark is basically making an aesthetic argument to the effect that if we knowingly allow this method of abortion our sensitivities will be hardened and we will be more likely in the future to consider things that we presently find unthinkable.  If my reading of the argument is correct (Mark, please correct me if I am off base here) I am at a loss to think of a precedent for that form of reasoning.  Is there any logical limiting principle here?  There is an odd First Amendment dimension suddenly involved in this discussion; the government wants to ban a medical procedure on the grounds that it sends an undesirable message?

Howard Schweber
Dept. of Poli. Sci.
UW-Madison