line between abortion and infanticide

Fri Apr 20 19:17:39 PDT 2007

Kennedy's point about similarity to infanticide is not precisely the same as the suggestion I and others have considered (in my case, without actually endorsing it) that the closer an abortion procedure is to infanticide, the more it can be prohibited.  But applying what you say to that suggestion:

The abortion debate is a debate because opponents of abortion think that all abortions are similar to infanticide, in some morally relevant sense.  So yes, if we say that the closer an abortion procedure is to infanticide, the more it can be prohibited, opponents of abortion might want to draw further lines.  However, I doubt that any opponent of abortion would argue that the manner in which a fetus is killed within the uterus makes the abortion AS close to infanticide as does partially "delivering" the fetus before killing it.

The idea that abortion is less protected as it gets closer to infanticide is not new.  Even before Carhart, there was a dividing line within the class of abortions, drawn on the basis of asserted similarity to infanticide: the line of viability.  The Court did not expressly say, in Roe or Casey, that the state can prohibit abortion after viability because such abortions are more like infanticide than pre-viability abortions, but that is what the Court said in effect.  

Mark

Samuel Bagenstos <srbagenstos at wulaw.wustl.edu> wrote:        v\:* {behavior:url(#default#VML);} o\:* {behavior:url(#default#VML);} w\:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);}             st1\:*{behavior:url(#default#ieooui) }           I just donï¿½t see the limits to Justice Kennedyï¿½s logic here.  What if Congress concludes, based on the Silent Scream videos that weï¿½ve all seen, that all second-term abortions have a disturbing similarity to infanticide?  Or what if Congress decides to ban the D&E procedure entirely, because it involves tearing the fetus apart, limb from limb?  Iï¿½m sure there are lots of people who believe these things, and they believe that these are special concerns, beyond the mere extinguishment of fetal life, that justify regulating those kinds of abortions.  In the second-trimester example, Justice Kennedyï¿½s paragraph would barely have to change at all.  In the D&E example, youï¿½d just have to rewrite it to say: 
 ï¿½No one would dispute that, for many, abortion 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 ï¿½disturbing similarity to killing by dismemberment or drawing and quartering,ï¿½ Congressional Findings [], and thus it was concerned with ï¿½draw[ing] a bright line that clearly distinguishes abortion and barbarism.ï¿½ Congressional Findings [].  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.ï¿½

    Samuel R. Bagenstos
  Professor of Law
  Washington University Law  School
  One Brookings Drive, Box 1120
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  Personal web page:  http://law.wustl.edu/Faculty/index.asp?id=198
  Disability law blog:  http://disabilitylaw.blogspot.com/

---------------------------------

  From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of MARK STEIN
 Sent: Thursday, April 19, 2007 12:21 PM
 To: CONLAWPROF at lists.ucla.edu
 Subject: Re: line between abortion and infanticide

  And perhaps the most serious challenge to an abortion-infanticide distinction that is based only on the liberty interest of the woman is the following:  What if the safest method of abortion would be to deliver the fetus alive, then euthanize it?  Based on the medical discussion in Carhart II, I suspect that such a procedure probably would be safest in some cases.

 Mark

 MARK STEIN <markstein at prodigy.net> wrote:

 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. ï¿½1531 (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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