Trust, Brutality, and Human Dignity: How “Partial Birth Abortion” Helps Shape American Biopolitics

Abstract

In this Article, I explore how nearly continuous public rhetorical challenges to abortion in the political realm first led the public and the courts to turn away from a particular abortion procedure (intact dilation and extraction, also known as partial-birth abortion) which political agitators labeled as “barbaric” and then to view physicians who performed abortions not as legitimate professionals, but simply as “abortionists,” and sometimes as evil “Frankensteins.” “Abortionists” use no “medical judgment” and are unworthy of deference by state legislatures, Congress, or the courts when deciding how or when to perform an abortion. The concentration on the welfare of fetuses and the actions of physicians permitted the abortion debate to bypass discussion of both the rights and welfare of pregnant patients, including their right to health, and to virtually never mention that abortion restrictions primarily affect people in poverty who cannot afford to seek reproductive health care, including an abortion, by traveling to a nonrestrictive state. Understanding the power of extreme rhetoric, including the use of social media in political campaigns and the use and misuse of concrete terms such as murder, infanticide, brutality, and dismemberment, and abstract concepts such as “human dignity,” can help us plot a post-Dobbs way forward. Perhaps the demise of Roe can lead to a birth of a new rhetoric on abortion, one that concentrates on the right to health of everyone, including the right to make reproductive decisions, and requires moving abortion back into the realm of contemporary medicine, complete with a meaningful doctor-patient relationship protected by privacy and financed in a way that is accessible to all pregnant patients.

Introduction

In 1987, this Journal published a special symposium issue entitled “Justice Harry A. Blackmun: The Supreme Court and the Limits of Medical Privacy” to honor Justice Blackmun and his work.¹ No Supreme Court Justice has done more to bring the professions of law and medicine together in common cause than Justice Blackmun. That was true in 1987 and remains true today. Blackmun described his own view of the relationship between law and medicine in his introductory essay for the symposium: “In this country, Medicine and Law, of course, are sister professions and share many goals.”² Controversies between the sisters are inherent in the courtroom, but Justice Blackmun believed that “most of them are comparatively trivial, are unnecessary, and with a little effort, can be avoided.”³ In his words, “What is really important is that there are significant issues that the two professions face in common and that are best jointly considered and jointly resolved.”⁴ This is probably why Blackmun termed the birth of the American Society of Law and Medicine in 1972, the year Roe was re-argued in the Supreme Court, as “refreshing to see.”⁵

Justice Blackmun listed some of the major issues faced by the two professions,⁶ all of which were addressed by the 1987 symposium authors, and all of which can also be placed in the continually expanding category of American biopolitics:⁷

• • Individual and familial privacy rights concerning reproduction

• • The regulation of sexual behavior

• • Pregnancy discrimination in the workplace

• • The impact of technological advances on reproductive rights

• • Fetal status under the law

• • The right to procreate and the limits of that right

Justice Blackmun did not comment on his own contribution to these issues, all of which are directly affected by his majority decision in Roe v. Wade. ⁸ He was likely thinking about his most famous opinion, however, when he mused that “perhaps somewhat disturbing to me” was the Supreme Court’s “inevitable involvement with all this, a Court with human limitations and fallibility, with what seems to be occasional insensitivity, almost fear, for that which is so important for medicine…”⁹ He also asserted that we will inevitably fall short if we cannot assume that “all of us … are engaged in a quest for truth—truth in Medicine and truth in Law.”¹⁰

Biopolitical sights and sounds

Abortion arguments are seldom about truth and often concern politics and polarizing extreme positions. The political debate is usually framed as pro-choice versus pro-life: protecting the liberty rights of the pregnant person versus the life of the fetus, and the rights of physicians to practice medicine versus the state’s interest in regulating an arguably illegitimate procedure. These post-Roe political disputes have demonstrated that abortion disputes are unlikely to ever be resolved in the political arena. In fact, overall public attitudes toward abortion have not changed significantly in the past five decades. Most successful anti-Roe arguments concentrate on the life of the fetus by portraying it, at virtually any post-conception stage, as a “baby.” Anti-Roe forces, for example, won a major rhetorical victory by commandeering the word “life;” pro-Roe activists were left to employ a less emotionally powerful word: “choice.”

Deploying the “life” strategy, Roe has historically been attacked by displaying photographs of viable fetuses outside of abortion clinics and sonograms of developing fetuses inside the examining room.¹¹ Most recently, Texas has adopted a “heartbeat” law that prohibits abortions after about six weeks.¹² The Texas law highlights sounds rather than sights: adding sounds of early fetal development to the iconic “silent scream” of the twelve week fetus being aborted.¹³ With the metaphoric “heartbeat” law, the battle to capture the language of the abortion debate continues and has been supplemented by plastic models of tiny fetuses.¹⁴ As the late Joan Didion’s biographer, Tracy Daugherty, explained of Didion: “She knew that when you change how things look and sound, you might be changing long-held values, sexuality, and how people lived their lives.”¹⁵

The rhetoric of abortion was already extreme in 1987, with abortion widely termed “murder,” physicians who performed abortions called “abortionists,” and a medical procedure used for second trimester abortions denoted as a “partial birth abortion.”¹⁶ Justice Blackmun participated in more abortion opinions after 1987, including Webster ¹⁷ in 1989 and Casey ¹⁸ in 1992, both of which the pro-life community hoped the Court would use to overrule Roe. Neither did, although Casey radically diminished Roe’s reach by replacing the fundamental right to privacy with a liberty interest. Similarly, Roe’s requirement of a compelling state interest to justify regulation of abortion prior to viability was replaced with the rule requiring the regulation to not create an “undue burden” on the decision to terminate a pregnancy.¹⁹

Justice Blackmun’s basic approach to the abortion right had been to try to protect physicians from state regulations that would constrain the exercise of medical judgment. Blackmun spent a decade as legal counsel to Minnesota’s Mayo Clinic and often called that time the best ten years of his life.²⁰ Under Roe, physicians were permitted to use their “medical judgment” at least until the fetus was “viable.”²¹ Physicians could also determine, for particular fetuses, if viability had been reached.²² Similarly, throughout pregnancy, physicians could determine if the life or health of the pregnant patient was threatened by the pregnancy and end it (of course, with the consent of the patient) if, in the physician’s medical judgment, termination was necessary to preserve the patient’s life or health.²³ This view had much to commend it.²⁴ Nonetheless, Casey found the physician focus of Roe overly deferential to physicians, noting that whatever rights physicians have in the doctor-patient relationship are derived from the rights of the patient.

After Casey, many in the right to life movement despaired of ever appointing enough anti-Roe Justices to the Court to explicitly overrule Roe. It was at this juncture of the long running Roe dispute that a new approach to challenging abortion presented itself, when an article with illustrations of what was seen as a particularly brutal method of second trimester abortion. Instead of attacking the physician or the pregnant patient, the new focus was on protecting fetuses (and the public) from a specific abortion procedure, branded as a “partial-birth abortion.”²⁵

“Partial-birth abortion” provided a new weapon against “abortionists” who could be portrayed as modern, reverse Frankensteins, not creating life from dead body parts, but ending the life of live fetuses by dismembering them. For anti-abortionists, partial-birth abortion seemed to be “a political godsend.”²⁶ When the first “partial birth abortion” case was heard by the Court, Justice Blackmun had retired and been replaced by Stephen Breyer. Breyer authored the opinion in Stenberg that would likely have been assigned to Justice Blackmun had he still been on the Court.²⁷

I wrote about the two US Supreme Court decisions on “partial birth abortion” in the New England Journal of Medicine shortly after each was decided.²⁸ Two decades later it is much easier to discern the implications of what can be characterized as outlawing specific “pre-viability abortion techniques,” which included extreme anti-abortion rhetoric that inaccurately conflated all “late term” abortions with a ghoulish method of infanticide

In retrospect it is reasonable to argue that what appeared as a freakish and marginal abortion technique at the time has turned out to be central in the ongoing image-dominated debate over Roe. The use of a specific technique, which could be rhetorically (but not really) linked to birth, signaled that the Roe/Casey framework based on fetal viability and maternal health, defined and protected by a trustworthy physician practicing standard of care medicine, was unlikely to hold for much longer. The trustworthy physician was being transformed by the anti-abortion community into a brutal abortionist who used non-medical methods to destroy life that the state had a religious/ethical interest in protecting to affirm the human dignity of the “unborn child” throughout pregnancy.

There was no medically accepted name for this procedure, which is why right to life organizations were able to label it based on politics rather than science or medicine.²⁹ The partial-birth abortion label is more akin to an advertising slogan, or the language of a carnival barker outside an exhibit of a deformed fetus than based on medicine or science. The label purposely adopts overtly inflammatory political language that ties abortion to childbirth to condemn this method of abortion as “infanticide.” The procedure also has its own illustration, a line drawing which pictures a full-term fetus in the process of being delivered—just before it would be killed by the “abortionist.”³⁰

During the post-Casey 1990s laws prohibiting partial-birth abortions were adopted in most states. Federal anti-partial birth abortion bills were also twice passed by Congress. President Clinton vetoed both of the federal bills (both vetoes survived attempts to override them) and Clinton said he would sign a ban if the Congress included an exception for the health of the patient.³¹ In his memoir, Clinton notes that while the procedure seemed “heartless and cruel,” he believed it was rare “and was predominantly performed on women whose doctors had told them it was necessary to preserve their own lives or health, often because they were carrying hydrocephalic babies who were certain to die before, during, or shortly after childbirth.”³²

In 2000, the Supreme Court ruled that a Nebraska partial-birth abortion law was unconstitutional because (1) the procedure it attempted to outlaw was too vaguely described, and that therefore, physicians could not know what exactly was being prohibited, and (2) because there was no exception for the health of the pregnant patient.³³ Nonetheless, political activists continued to seek prohibition. To improve its chances before the Supreme Court, Congress modified the definition of the prohibited procedure, and in the preface to the act declared that “partial birth abortion” was “never medically necessary.”³⁴ President George W. Bush signed the modified bill into law on November 5, 2003, surrounded by an all-male group of nine legislators. In remarks, Bush said that the law comes to “the defense of the innocent child” by prohibiting “a terrible form of violence [that] has been directed against children who are inches from birth …”³⁵

The supreme court and partial birth abortion

By the time the Supreme Court reviewed the 2003 federal law, it was a different Court than the one that had declared a substantially similar state law unconstitutional in 2000. Most importantly, Justice Sandra Day O’Connor had been replaced by Justice Samuel Alito who was nominated to the Court primarily because of an expectation that he would vote to reverse Roe v. Wade. He did not disappoint. Justice Alito joined with Chief Justice John Roberts and the Court’s two most consistently anti-Roe members, Justices Antonin Scalia and Clarence Thomas, to give Justice Anthony Kennedy’s minority opinion in Stenberg the five votes it needed to be the majority.³⁶ In short, the political strategy to reframe the abortion debate in America to focus on a medical procedure—denoted “partial-birth abortion”—rather than on pregnant patients, fetuses, or physicians, succeeded in the Court.

Justice Kennedy opens his opinion with descriptions of what, “for discussion purposes,” he termed “intact D&E,” (instead of “partial-birth abortion,” the term used in the statute).³⁷ His descriptions of the procedure at issue are almost exclusively based on first-hand accounts from one physician and one nurse who had described how the procedure was done in the early 1990s, the time of Casey. ³⁸ The physician, Martin Haskell, described the procedure in a presentation to the National Abortion Federation in 1992.³⁹ In Haskell’s words, after the fetus is partially delivered, the physician forces a “scissors into the base of the skull” and then “evacuates the skull contents” before removing the fetus “completely from the patient.”⁴⁰ In Justice Kennedy’s words, “This is an abortion doctor’s clinical description.”⁴¹

An unnamed nurse, who witnessed one such abortion, described Haskell’s procedure in especially gruesome, Frankenstein-like terms. The physician begins by grabbing the “baby’s legs” with forceps, pulling the baby down the “birth canal” until “everything but the head [is delivered] … The baby’s little fingers were clasping and unclasping, and his little feet were kicking.”⁴² She continues, “Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out … the doctor … sucked the baby’s brains out … He threw the baby in a pan, along with the placenta and the instruments he had just used.”⁴³ Justice Kennedy concedes that the procedure as described “has evolved,” and that other physicians do it differently.⁴⁴ But these other methods, like squeezing the skull, crushing the skull, or even decapitating the fetus prior to removing it, do not seem like much of an improvement.

Only after these ghoulish descriptions does Kennedy quote the language of the 2003 federal law that had been modified to respond to the vagueness problems in the definition of the forbidden procedure that a majority of the Court had identified in Stenberg. The 2003 federal definition is as follows:

the term ‘partial-birth abortion’ means an abortion in which the person performing the abortion—

(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and

(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus …⁴⁵

Justice Kennedy concludes that the new federal law cures the vagueness defects of the Nebraska statute. The Nebraska law was held to create an “undue burden” on women because their physicians could not readily distinguish the prohibited procedure from the commonly performed D&E procedure, and thus might not perform even the legal D&E procedure.⁴⁶ The Nebraska law reads in relevant part:

[a “partial-birth abortion” is] an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery … . [“partially delivers vaginally a living unborn child before killing the unborn child” means] deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.⁴⁷

Justice Kennedy believes that the new law is no longer vague because it “adopts the phrase ‘delivers a living fetus’ … instead of ‘delivering … a living unborn child, or a substantial portion thereof.’”⁴⁸ He also finds that this new law makes the distinction between the prohibited procedure and a standard D&E abortion clear. This is primarily because the federal law specifies fetal landmarks (e.g., the “navel”) instead of the vague description used in the Nebraska law, “substantial portion” of the “unborn child.”⁴⁹

Because the law applies to both previable and viable fetuses, Kennedy concedes that under Casey the law would be unconstitutional “if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”⁵⁰ Justice Kennedy, however, finds that Congress had two aims: First, Congress wanted to “[express] respect for the dignity of human life” by outlawing “a method of abortion in which a fetus is killed just inches before completion of the birth process.”⁵¹ Congress was concerned that this abortion method has “a disturbing similarity to the killing of a newborn infant [… and] was concerned with drawing a bright line that clearly distinguishes abortion and infanticide.”⁵²According to Congress, use of this procedure “will further coarsen society to the humanity of not only newborns, but of all vulnerable and innocent human life … .”⁵³ Second, Congress (although having no respect for physicians) wanted to protect medical ethics, finding that this procedure “confuses the medical, legal and ethical duties of physicians to preserve and promote life.”⁵⁴

The key to Justice Kennedy’s legal analysis is his conclusion that these reasons are constitutionally sufficient to justify the ban on partial-birth abortions. Under Casey “the State, from the inception of pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child [and this interest] cannot be set at naught by interpreting Casey’s requirement of a health exception so it becomes tantamount to allowing the doctor to choose the abortion method he or she might prefer.”⁵⁵ His conclusion was that

[w]here [the State] has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in the furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including the life of the unborn.⁵⁶

Imagine there’s no woman⁵⁷

Justice Blackmun in Roe concentrated so much on the rights of physicians to practice medicine that the decision marginalized the role of the patient in the abortion decision. Justice Kennedy only briefly acknowledges the patient, seeming to suggest that pregnant patients have little involvement with the decision about whether to continue a pregnancy. He writes that “respect for human life finds an ultimate expression in the bond of love the mother has for her child,” and that “while no reliable data” exists on the subject, “it seems unexceptional to conclude some women come to regret their choice to abort the infant life they once created and sustained … Severe depression and loss of esteem can follow.”⁵⁸ Such regret, Justice Kennedy believes, can be caused or exacerbated if a woman later learns the details of what the abortion procedure entailed. Here he suggests that physicians undermine informed consent by failing to describe the procedure to patients because they “may prefer not to disclose precise details of the means [of abortion] that will be used …”⁵⁹ From this claim, he concludes that the new law, although itself unable to prevent one abortion (only change the method used) is rationally based, because it may save some fetuses:

It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions. The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand. The State’s interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion.⁶⁰

The final, closely related issue is whether the prohibition would ever pose significant health risks to pregnant patients, and whether physicians or Congress should make this determination. Kennedy picks Congress: “The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community … Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.”⁶¹ Furthermore, Kennedy argues, the law does not impose an “undue burden” on women for another reason: alternative ways of killing fetuses exist and have not been prohibited, and not only standard D&E. In his words, “If the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure.”⁶² Why this is a legitimate medical procedure, but “partial birth abortion” as described in the statute is not, goes unexplained and unexplored.

Justice Ginsburg argues (correctly in my view) that the majority of the Court has overruled Stenberg’s conclusion that a health exception is required as long as “substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health [because a division in medical opinion] at most means uncertainty, a factor that signals the presence of risk, not its absence.”⁶³ This conclusion, bolstered by evidence presented by nine professional organizations, including the American College of Obstetrics & Gynecology,⁶⁴ and conclusions by all three US District Courts⁶⁵ that heard evidence concerning the Act and its effects, directly contradicts the Congressional declaration that “there is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures.”⁶⁶ Even the majority agreed that this Congressional finding was untenable, which is why the Court had to disregard the relevance of the pregnant patient’s health altogether.⁶⁷

This leaves, Justice Ginsburg concludes, only “flimsy and transparent justifications” for upholding the ban. She rejects those justifications, arguing that the state’s interest in “preserving and promoting fetal life” cannot be furthered by a ban that targets only a method of abortion and therefore cannot save “a single fetus from destruction” by its own terms.⁶⁸ Nor, she believes, is the condemned method sufficiently different from approved methods to make the distinction rational. This is because the Court-permitted alternative—lethal injection followed by delivering the dead fetus, also results in an intact fetus that resembles an infant.⁶⁹

Ultimately, Ginsburg believes that the majority opinion rests entirely on the proposition, never before enshrined in a majority opinion, and explicitly repudiated in Casey, that “ethical and moral concerns” unrelated to the government’s interest in “preserving life” can overcome fundamental rights of citizens.⁷⁰ The majority seeks to bolster this reasoning by describing pregnant patients as in such a fragile emotional state that physicians may take advantage of them by withholding information about abortion. The solution to this hypothetical problem, as Justice Ginsburg describes in the majority opinion, is to “deprive women of the right to make an autonomous choice, even at the expense of their safety.”⁷¹ The only woman on the Court at this time continues, “This way of thinking [that men must protect women by restricting their choices] reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.”⁷²

Justice Ginsburg also observes that Kennedy’s majority opinion ignores the viability line, and instead approves a law based on “where a fetus is anatomically located when a particular medical procedure is performed … .”⁷³ She does not add, but could have, that application of the law prior to fetal viability makes its foundational concept, “partial-birth abortion,” incoherent since if the fetus is not viable there will usually be only a delivery of dead fetal parts.⁷⁴

Imagine there’s no physician

The majority in Carhart, in Justice Ginsburg’s words, simply can’t contain its contempt for physicians who perform abortions:

The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” A fetus is described an “unborn child,” and as a “baby”; second-trimester, pre-viability abortions are referred to as “late-term,” and the reasoned medical judgments of highly trained doctors are dismissed as “preferences” motivated by “mere convenience.”⁷⁵

Justice Ginsberg argues further that the opinion threatens to undercut the rule of law and the principle of stare decisis, both of which the Court affirmed in Casey. ⁷⁶ Of course, stare decisis is at the core of the Court’s deliberations in the Mississippi case which challenges a law that prohibits abortion after 15 weeks (not coincidentally the time period in which the “partial birth abortion” technique is usually used).⁷⁷ It is Gonzales v. Carhart that provides a precedent to disregard the medical judgment of physicians about not only the use of a particular medical procedure, but also about the health and welfare of the patient.⁷⁸

With Blackmun retired from the Court, no Justice seriously considered the role of physicians and medical ethics in caring for pregnant patients (Kennedy did mention medical ethics, but only as an excuse for Congress to regulate the actions of physicians).⁷⁹ The majority concluded that physicians, especially “abortion doctors” (Kennedy at least stopped calling physicians “abortionists” as he did in his Stenberg dissent), cannot be trusted either to tell their patients the truth or to act in the medical best interests of their patients.⁸⁰

The majority remarkably asserts that giving Congress constitutional authority over medical practice is nothing new, but identifies no case in which Congress had ever outlawed a medical procedure. Its reliance on the more than 100-year-old Jacobson v. Massachusetts ⁸¹ case in this regard is especially inapt. Jacobson was about mandatory smallpox vaccination during an epidemic. The statute had an exception for “children who present a certificate, signed by a registered physician, that they are unfit subjects for vaccination,” and the Court implied that a similar medical exception would be constitutionally required for adults.⁸² It is not just abortion regulations that have had a health exception for physicians and their patients—all health regulations have.

In Roe v. Wade, and even more centrally in its companion case, Doe v. Bolton,⁸³ Justice Harry Blackmun, writing for a 7-to-2 majority in both opinions, had centered the privacy rights Roe articulated in the doctor–patient relationship generally, and on the doctor’s right to practice medicine specifically.⁸⁴ In rejecting a Georgia statute that required a physician to obtain the concurrence of two other physicians before performing an abortion, Justice Blackmun wrote for the majority:

If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable medical clinical judgment. If he fails this, professional censure and deprivation of his license are available remedies. Required acquiescence by co-practitioners has no rational connection with a patient’s needs and unduly infringes on the physician’s right to practice. ⁸⁵

Carhart is a wholesale vote of no confidence by the Court, not only in the way physicians are licensed and regulated by state medical boards, but also in the ethics of physicians themselves. Justice Blackmun would be horrified.

Contemporary attacks on abortion techniques

After Carhart, abortion politics only intensified as individual states began enacting even more laws specifically designed to make abortion more difficult for both physicians and their patients. One major movement was to pass what have been politically-termed “TRAP” laws, targeted regulation of abortion providers.⁸⁶ When the Court considered a Texas statute that required, among other things, physicians who perform abortions have hospital privileges at a nearby hospital so patients can be transferred there in the event of an emergency, the Court found that laws that make it more difficult for women to obtain pre-viability abortions cannot be justified on the basis of protecting women’s health unless there is evidence that the regulation has a beneficial effect on women’s health.⁸⁷

More recent attacks on abortion techniques have targeted “live dismemberment abortion,” which involves delivering the fetus not whole (as in D&E or partial birth abortion), but in pieces.⁸⁸ The motivation for outlawing dismemberment abortion is the same as outlawing partial birth abortion: to horrify and shock Americans and make political points in the abortion debate.⁸⁹

A Texas statute, currently being challenged in court, well illustrates the continuing fascination with making abortion appear ghoulish and horrifying. The Texas statute outlaws the procedure approved of as an alternative to “partial birth abortion” by the US Supreme Court in Carhart. Specifically, the Court approved of delivering the fetus in pieces.⁹⁰ Texas is now asking why what it terms “dismemberment abortion” is any better than “partial birth abortion,” arguing that they should both be outlawed.⁹¹ The Texas legislature defines (SB8) “live dismemberment abortion” as:

An abortion in which a person, with the purpose of causing the death of an unborn child, dismembers the living unborn child and extracts the unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps, or performs any combination of those actions on, a piece of an unborn child’s body to cut or rip the piece from the body.⁹²

Winning its case in an en banc appeal, 9-5,⁹³ Texas made arguments justifying outlawing live dismemberment similar to those made by the US in Carhart. Most central is the state’s interest “in providing a greater degree of dignity in a soon-to-be-aborted fetus’s death” by requiring physicians to use an alternative to live dismemberment which the state argues is “self-evidently gruesome.”⁹⁴ Texas bolstered its argument by noting that it “has long been illegal to kill capital prisoners by dismemberment,” and it “is also illegal to dismember living animals.”⁹⁵ Texas concluded that its new law “would simply extend the same protection to fetuses.”⁹⁶

According to the Appeals Court, the outlawed procedure was used only in weeks 15 to 22.⁹⁷ In weeks 15 and 16 suction alone can be used to cause fetal death and avoid the restrictions of SB8; likewise, in later weeks, digoxin can be used to “achieve” fetal death, and thus avoid the restrictions of SB8.⁹⁸ Ginsberg seems right in observing that distinguishing these procedures on the basis of one being more “ethical” or palatable seems irrational on its face.⁹⁹ Nonetheless, it is worth revisiting Carhart on this point. Justice Kennedy uses a line to bolster the Court’s conclusion that Congress may draw boundary lines “to prevent certain practices that extinguish life and are close to actions that are condemned.”¹⁰⁰

The “slippery slope” case Justice Kennedy uses is as unexpected as is the Appeals Court’s use of dismemberment execution of capital prisoners, his analogy is to physician assisted suicide.¹⁰¹ In Kennedy’s words, “Glucksberg found reasonable the State’s ‘fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia.”¹⁰² We are getting very confused and confusing arguments here, and we can expect more of them in our renewed national debate on Roe v. Wade as well. Suffice it to note that while the slippery slope is a real¹⁰³ we are well able to distinguish our treatment of animals from our treatment of humans.

But perhaps this is the point of the “argument.” We have stopped torturing prisoners and (some) animals because we recognize that they suffer, and that it is wrong for us to inflict suffering upon them. Focusing on the suffering of the fetus can lead to attempts to identify and quantify suffering, and from that point (we are not there yet), to outlaw all abortion techniques that could inflict suffering on the fetus during specific abortion procedures. There is no convincing evidence to support the claim that pre-viable fetuses can suffer.¹⁰⁴ Nonetheless, as with the deployment of the film Silent Scream, evidence is not the point: scoring anti-abortion political points is the point.¹⁰⁵ We will get no further “following the science” in our renewed abortion debate than we got following the science in our pandemic era debates over mask wearing and vaccine mandates.¹⁰⁶

Post-pandemic abortion politics

Dobbs will not end the abortion debate in the US, and is likely to make it even more contentious. A half-century after Roe there have beemany changes that will directly affect how the continuing political debate over Roe is waged as the states get more power from the Court to regulate pregnant patients and the care their physicians can provide them. Roe got the abortion debate off to a problematic start by concentrating it on the right of a physician to practice medicine, rather than on the right of a patient to make critical decisions regarding her life and health. A post-Dobbs “restart” of the abortion debate should begin with the rights of women to equality, dignity, and nondiscrimination.¹⁰⁷ We should no longer be able to “imagine there’s no woman” in pregnancy, and pregnant and potentially pregnant patients will have to be at the center even in states that seem to be living in earlier times.

Medical technology did not undermine Roe in the way Justice O’Connor thought it would. Instead of the viability line moving to an earlier and earlier fetal age, it has been virtually stable, moving only about 2 weeks since Roe. The most recent anti-Roe quest is to find an earlier line to replace viability as a relevant legal line altogether. At least for now, states have wide authority to choose their own lines at which to ban abortion, and many states will limit abortion to the first trimester (longer than the Texas heartbeat law, but shorter than Mississippi’s fifteen-week limit), or sometime within it.¹⁰⁸ Images of second trimester abortions, including “partial birth abortions” and “live dismemberment abortions” will be employed to outlaw these procedures. The goal in focusing on these techniques is political: to undermine public support for abortion itself.

Technology will also change the abortion debate in a way that has already begun to reintroduce the privacy of the doctor-patient relationship. Medical abortions are now relatively routine, and with telemedicine no actual visit to the physician is necessary.¹⁰⁹ First-trimester abortions with medication prescribed and monitored by a physician seems to be the direction the U.S. in heading in.¹¹⁰ Justice Blackmun would, I think, approve of this development.

The U.S. health care “system” mirrors society and all its flaws. In the abortion realm there has been and remains vicious discrimination against poor and minority women. Congress has, since Roe, forbidden the use of any federal funding to finance abortion, and the Court has made it clear that there is no “right” to have the government pay for an abortion even if the pregnant woman cannot afford the procedure.¹¹¹ Payment remains a major challenge and a major obstacle to obtaining medical care, and all people should have equal access to health care, including contraception and abortion—but that is the subject of another article.¹¹²

Fifty years of Blackmun’s Roe have ended with physicians playing a smaller and smaller role at the Supreme Court.¹¹³ Instead of expert specialists who follow medical ethics to protect the health of their patients, a majority of the Court now sees physicians as brutal technocrats who use nonmedical methods to kill living fetuses who might otherwise become children. States have no constitutional obligation to turn over abortion regulation to physicians. Justice Blackmun’s admiration of physicians and the practice of medicine is no longer shared by any of the Justices, who are as likely to see medicine as just another business that has no special ethics. Blackmun would be deeply disappointed that his view of medicine did not prevail. He would be even more disappointed at doctors and lawyers working together in the post-9/11 war on terror to torture terrorist suspects.¹¹⁴

The American public was horrified at the photos of tortured prisoners at Abu Ghraib, which drained any enthusiasm the country had to pursue the war in Iraq.¹¹⁵ Similarly, the American public was horrified at the depiction of “partial-birth abortions” and “live dismemberment abortions,” and support ending their use by evil Frankensteins.¹¹⁶ The extreme tactics adopted by anti-abortion forces deploying partial birth abortion rhetoric and images remain effective. They will not only continue to be used; they will be adopted to challenge other public health measures that provoke minority resistance, including quarantine, mask requirements, and mandatory vaccination.¹¹⁷

Public opinion is where it was when Roe was decided, and remains consistent with Justice Blackmun’s views: about 75% of Americans believed in 1972, and continue to believe today, that abortion should be a matter decided between a woman and her physician.¹¹⁸ Post-Dobbs, each state will now have much more constitutional authority to write its own abortion law, and the country will be given yet another opportunity to divide itself into opposing camps over how the actions of pregnant people should be governed by the law.

In the context of continuing efforts to dehumanize and delegitimize abortion and the physicians who treat pregnant patients by providing this medical service, it seems appropriate to end this reflection on abortion and American biopolitics with the words of Justice Blackmun at the beginning of his opinion in Roe v. Wade. Justice Blackmun begins Roe by stating that he is aware “of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.”¹¹⁹ He continues by all but predicting that because of abortion’s personal and emotional core, that Roe will not be the last Constitutional word on abortion in America. Rather, Roe is more likely to usher in an era of continuing biopolitical disputes that may produce even more extreme and more vicious disputes, rather than yielding a resolution. This is because one’s views on how abortion should be governed are grounded in

[o]ne’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.¹²⁰