Issues@Hand
AFA initiatives, Christian activism, news briefs
January 1998 – The controversy over abortion has long revolved around moral questions of the most foundational sort, provoking a emotional reaction in those on both sides of the issue. But over the years the abortion question seemed to change into a sometimes detached debate over the right to protest at abortion clinics, parental consent, and abortion’s place in the platforms of political parties. For pro-family conservatives, the passion of the abortion issue seemed to have been swallowed up by more demanding concerns: homosexuality, political elections, and the sudden acceleration of our popular culture into hedonistic decadence.
But almost two-and-a-half years ago, the gut-level questions about abortion once again intruded themselves into the public’s mind, due to a late-term procedure popularly referred to as “partial-birth abortions.” The procedure involves delivering a baby except for its head, inserting scissors into the base of the skull, then vacuuming out the baby’s brain. The baby’s skull is then crushed, allowing the delivery to be completed.
The grotesque nature of this procedure has resulted in Congress twice voting to ban it. Both times President Clinton vetoed the ban. Congress failed to override the first veto, and will attempt to override the second veto sometime in 1998.
Partial-birth abortion ban struck down in Ohio
Since the issue came to the forefront in 1995, 15 states have passed laws banning partial-birth abortions. Ohio, which was the first state to do so, recently had its law ruled unconstitutional by the 6th U.S. Circuit Court of Appeals. It is the first ruling on the procedure from a federal appellate court, and the 3-1 decision said the law failed to adequately protect a woman’s mental health.
While the appellate court ruling technically applies only in the states covered by the 6th Circuit,some observers feel certain the decision will serve as a precedent for other courts on the appellate circuit. And appellate courts should be busy. In at least five states, federal judges in lower courts – like U.S. District Judge Richard Koph in Nebraska this past August – have already struck down similar bans.
AFA attorney uses novel approach in Arizona case
A new perspective on partial-birth abortions is being developed in Arizona, where that state’s ban on partial-birth abortions has also been ruled unconstitutional by a federal judge. The law was challenged by two doctors and Planned Parenthood of Southern Arizona, Inc., and Planned Parenthood of Central and Northern Arizona, Inc. The decision, issued in federal court in Tucson by U.S. District Judge Richard M. Bilby, is being appealed.
Bruce Green, Chief Counsel for the AFA Law Center and General Counsel for AFA, was appointed in an individual capacity by the county attorney in Mohave County, Arizona, as a special assistant deputy county attorney, and as a special assistant attorney general for Arizona. Nick Nikas, an attorney for Americans United for Life, was similarly assigned in the case. Green, Nikas and Special Assistant Attorney General Tom McGovern made up the defense team in the case.
The defense argued before Judge Bilby that a so-called partial birth abortion is not an abortion at all – it is nothing short of infanticide, and therefore falls outside the reach of previous court decisions on abortion.
In establishing this point, the state of Arizona argued that the personhood of a human being develops in two stages: the first stage is pregnancy, which begins at conception and ends when the living child begins to exit the uterus; the second stage, birth, or parturition, begins when the living fetus begins to exit the womb.
“Birth is inevitable once the membranes of the amniotic sac are ruptured and the living child begins his emergence from the womb by breaking the plane of the cervical os (the point of the cervix that normally dilates, and separates the womb from the birth canal),” said Green. “Once this rupture has occurred and the plane has been broken, pregnancy has ceased….”
At this point, with pregnancy ended in a medical sense, Green said judicial rulings concerning abortion cease to apply.
“While the courts may say there is a right to abortion in the womb, there is no right...to take the life of a child in the process of being born,” he said. “In fact, there are laws on the books that are called parturition statutes, that say you may not take the life of a child in the process of being born.”
This is a legal difference noted even by the Supreme Court. “From Roe v. Wade through Casey v. Planned Parenthood, the Supreme Court has affirmed and reaffirmed that a woman has a constitutional right to terminate her pregnancy...,” argued Green. “In no case has the United States Supreme Court ever contemplated, much less held, that the constitutional right to abortion extends to any other stage of child development, including the process of birth.”
That is why, in defending the Arizona statute, Green said the concept of the so-called partial-birth abortion is “a beachhead assault on the youngest and most helpless of Arizona’s citizenry, and attempts to bridge the gap between abortion and infanticide,” and was being used “to blur the distinction between legal abortion and murder.” Green contended that the Arizona law was meant to “maintain an impenetrable barrier against infanticide.”
Green and Nikas said their defense was the first of its kind. “Our argument is unique in the sense that it wasthe first argument to posit that view anywhere in the country,” Green said. “There are others after us now that are taking that up. But ours is the first one in the country to advance the ‘inevitability of birth’ theory.”
That line of reasoning was so unusual that the plaintiffs were caught offguard. “They were totally lost,” Green said, “completely dumbfounded and surprised at our approach.”
Down the “slippery slope”
Unfortunately, it wasn’t an argument that the District Judge was willing to accept. Judge Bilby said the novel approach was basically “sophistry,” and said it was nothing more than argument and a “back-door attempt to go after Roe v. Wade and destroy it.”
The court thus ruled despite evidence to the contrary: 20 members of the Arizona legislature filed an amicus brief that stated plainly that their intention in writing the legislation was to stop infanticide, not abortion.
Green said it was “highly unusual” for a judge to disregard such a brief, and instead assert that he knew the real intent behind the legislation. “It is unusual in a case like this where [the argument being disregarded] was our sole defense,” Green said, adding that the court wrote its opinion as if the defense had argued for the state’s right to regulate abortion.
“So the court ignored our evidence, took the other side’s evidence, and wrote on a case that, in our opinion, didn’t even occur at trial,” he said.
In the end, Green noted, there was more at stake than a novel approach to the abortion issue. If the courts deny the clear medical and legal reasoning used in the defense of the Arizona statute, he said, then the danger to unborn children won’t stop with so-called partial-birth abortion. “It’s the slippery slope,” Green said, “and we’re heading towards the taking of the life of the child completely outside the womb." 
