Last Wednesday the Supreme Court heard oral arguments in Gonzalez vs. Carhart, one of two partial birth abortion cases. I am opposed to partial birth abortion, and I am persuaded that the Supreme Court should give deference to Congress’ decision to ban the practice. Having said that, some of the oral arguments offered by the government’s lawyer, General Paul Clement, were logically torturous. I actually found myself agreeing more with the logic of Justice Ginsberg (extreeeeme leftist) than I did with the guy representing my point of view. Here’s a reproduction of their exchange:

GENERAL CLEMENT: Congress was entitled to make a judgment in furthering its legitimate interests that they were going to ban a particularly gruesome procedure that blurred the line between abortion and infanticide.


JUSTICE GINSBURG: General Clement, couldn’t a similar record be made with respect to what is the more common procedure, the D&E that involves dismemberment of a fetus inside the womb. So assuming you’re right that it is constitutional for Congress to ban the D&X proceeding, wouldn’t the same reasoning apply, couldn’t Congress make similar findings with respect to what is the most common method for second trimester abortions?


GENERAL CLEMENT: I don’t think so, Justice Ginsburg, and I think that this Court’s precedence, in particular the Danforth case, would stand as an obstacle to that piece of legislation, because in Danforth, this Court struck down an effort to ban what was then the majority method of inducing a second term abortion. And I think in the same way, there is quite a different situation when Congress comes in and tries to deal with the primary abortion method in the second trimester. Here, though, Congress didn’t go after the dog, so to speak, it went after the tail. This very aberrant procedure, atypical procedure. And the numbers are hard to come by, but I don’t think anybody suggests that the D&X procedure is anything more than a very small minority of second trimester abortions. And so I do think –


JUSTICE GINSBURG: Even though we are told by some of the medical briefs that the procedure is basically the same, they start out in the same way and that the difference — the differences are not large in particular cases.


GENERAL CLEMENT: Well, Justice Ginsburg, let me make a couple of points in response to that. I think — taken at the broader level first, I think there is one very important difference between these two procedures that led Congress to ban one and allow the other to stand. And that is whether fetal demise takes place in utero, which is, of course, the hallmark of all abortions, or whether fetal demise takes place when the fetus is more than halfway out of the mother.

. . .

JUSTICE SCALIA: Would it, would it be lawful or would it be infanticide to deliver the fetus entirely and just let it expire without any attempt to keep it alive?


GENERAL CLEMENT: Well, in the post-viability context it would clearly be, it would clearly be infanticide. I think in the pre-viability context, if you have a complete delivery but the child isn’t going to survive, I don’t think it would be infanticide to necessarily let the child expire –




GENERAL CLEMENT: But I do think by contrast if somebody tried to, with the fetus, you know, perfectly alive and in the hours that it might have to live, if somebody came in and ripped its head open, I think we’d call that murder, and in fact Congress passed another statute –


JUSTICE GINSBURG: General Clement, that’s not what this case is about, because I think you have recognized, quite appropriately, that we’re not talking about whether any fetus will be preserved by this legislation. The only question that you are raising is whether Congress can ban a certain method of performing an abortion. So anything about infanticide, babies, all that, is just beside the point because what this bans is a method of abortion. It doesn’t preserve any fetus because you just do it inside the womb instead of outside.


GENERAL CLEMENT: Justice Ginsberg, that’s right, but I don’t think that’s to trivialize Congress’s interest in maintaining a bright line between abortion and infanticide. And the way I would illustrate it is that line, even if you might think it has a temporal line, in the sense that viability versus previability is relevant, it clearly has a spatial dimension as well and the best illustration of that I think is think about a lawful post-viability abortion. There is a problem with the mother’s health, there is a problem with her life so it’s a lawful post-viability abortion. I don’t think that anybody thinks that the law is or should be indifferent to whether in that case fetal demise takes place in utero or outside the mother’s womb. The one is abortion, the other is murder. And I think that just recognizes that even in the post-viability context you have a very important line which is a spatial line, and that line is basically in womb, outside of womb, and what Congress tried to do in this statute is to draw that line and differentiate between one procedure where fetal demise takes place in utero –


JUSTICE GINSBURG: But if this case were limited to post-viability abortions it would be a different matter. But isn’t it so that the vast majority of these abortions are going to be performed pre-viability?


GENERAL CLEMENT: I think that’s probably right, Justice Ginsburg, but I think the point I would make is that Congress has an interest in maintaining the spatial line between infanticide and abortion, even with respect to pre-viability fetuses and that’s true for at least two reasons. [Clement was interrupted at this point, and from my reading of the transcripts, I do not see where he ever returned to his point.]

This dialogue evokes a question. What is the government trying to preserve: the definition of “infanticide” or moral sensibility? If the former, why should we be overly concerned? Definitions commonly change with use over time. If the latter, how can the government argue D&X abortions are wrong while D&E abortions are permissible? Justice Ginsberg nailed Clement on this point.


Clement said partial birth abortion (D&X) is a “gruesome procedure” that should be banned. Ginsberg asked why the D&E procedure should not be banned as well. Is dismembering a fetus from limb to limb in utero any less gruesome than partially delivering the fetus, puncturing a whole in its skull, and sucking its brains out? In each case the same “thing” is being killed. The harm done to the fetus is about equal (arguably the D&E procedure is more gruesome because the baby is chopped up in pieces, wherein the D&X procedure there is just one quick puncture to the head). The only real difference between the two procedures is the location of the fetus when it is killed. But how is the location of the fetus morally relevant? If I kill a man on the street by stabbing him in the head, is that any less evil than if I killed that same man in his house by cutting him up in pieces? Hardly! In either case an innocent human being has been killed. The location and manner of his death is irrelevant. Likewise with abortion.


Of course, this assessment hinges on whether the unborn are human beings in the same manner as the man in my example. Ironically that was the one question Roe never answered. But science has answered this question, and without controversy the unborn are human beings. If they are human beings, the unborn should not be killed in any manner whatsoever, regardless of their location and size.


How did Clement respond to Ginsberg’s question? By saying the spatial line between D&E and D&X abortions is vital to maintaining a bright line between abortion and infanticide. I agree in principle, but I think this is a rather weak justification. Indeed, the journey down the birth canal is the last remaining conceptual barrier between traditional concepts of abortion and infanticide. If that barrier gives way, the distinction between the two will give way as well. But how significant is this logically speaking? Why is the line important to begin with? If you can kill a baby in the womb one day before it is born, why can’t you kill that same baby one day after it is born? Has anything changed except its location? Birth may be a simple and practical demarcation line to distinguish between legal and illegal killing, but there is no biological or philosophical basis to see it as anything more than that. Nothing magically happens to the unborn in its journey down the 8” birth canal that magically turns it from non-human to human, non-valuable to valuable, and having no right to life to having a right to life.


Is killing a two month old baby outside the womb any less evil than killing a two month old baby inside the womb? It may not be as emotionally outrageous, but the two are morally equivalent because in both cases the same thing is being killed: a valuable and innocent human being. The only difference between the two is their location and level of development at the time of death. Just because they are small and hidden behind a veil of flesh does not mean they are any less valuable, or that the taking of their life is any less evil.


To argue against partial birth abortion on the grounds that it’s important for us to maintain a bright line between abortion and infanticide assumes abortion and infanticide are two different things—not by definitional convention (which is true), but ontologically and morally. But why should we accept that distinction? Who’s to say killing the baby in the womb using the D&E method should not be considered infanticide (particularly when we are talking about a post-viability fetus)? Who says infanticide only applies outside the womb to post-viable fetuses? Maybe the definition of infanticide should be expanded to include the unborn, rather than expanding the definition of abortion to include the partially born. To say the killing of an embryo/fetus in the womb is abortion—not infanticide—begs the question. If abortion is a form of infanticide because it kills an immature human being, then we don’t need to maintain a bright line between abortion and infanticide because there is no line to be had in the first place (and remember, I am arguing logically and morally, not legally).


Of course, it could be that General Clement understands this. It could be that he knows D&E is just as barbaric as D&X, and that the logic of his argument should apply to both D&X and D&E. It could be that the government is doing exactly what I blogged on a few days ago: using the incremental approach to morals legislation. I can’t be certain. Either way, I hope Clement wins the case for the U.S. government.


One final remark. Did you notice the euphemism being used to describe all of this?: “fetal demise.” Oh how we can make something so ugly sound so benign. What’s next, gunning down a man on the street will be known as “adult demise”?


One more final remark (smile): Justice Stevens said, “Whether the feet are more than halfway out, and some of these fetuses I understand in the procedure, are only four or five inches long. They are very different from fully formed babies.” This is why the Court needs to stick to interpreting the law rather than making it. Biologists and philosophers are cringing everywhere. What a foolish statement.