Athanasius Contra Mundum recently published a thought-provoking piece on the current pro-life movement, which reminded me of the partial-birth abortion ban that pro-lifers trumpeted as such a great victory under our “pro-life” president, George W. Bush. But is it such a great victory? What does this bill actually say?
The partial-birth abortion ban is codified in 18 U.S.C. 1531. Let me examine the “ban” phrase by phrase. Forgive me if I get wordy; I’m a lawyer and do this sort of thing for a living.
Sec. 1531. Partial-birth abortions prohibited
(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both.
“Kills a human fetus”? By this, I presume they meant, “kills a child”? They’re really going out of their way to make sure that nobody thinks they’re calling partial-birth abortion “murder.” Why, that would be crazy! The “fetus” isn’t even all the way outside the womb yet!
Oh, and fined? As in, when someone sucks the brains out of child perfectly capable of living on his own, he might get fined? And I might be imprisoned, but even if I am, it won’t be more than two years? Yeah; this act sure declares that partial-birth abortion is murder. Actually, it makes quite a point that it’s not murder, by prescribing ludicrously low punishments for it.
Finally, how exactly does partial-birth abortion affect interstate commerce? It doesn’t, so this statute really doesn’t apply to partial birth abortions at all, except in some very limited circumstances. Of course, Congress knows this; they know that this sort of law will (and can, for constitutional reasons) have absolutely no effect. But they pass it, and they glorify it, because it gets them pro-life votes; the fact that it’s completely useless doesn’t matter one whit.
This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.”
Right, like that ever happens. No; this is the standard “life of the mother” exception, which any abortionist can twist to his own ends. But he doesn’t really need to, anyway, because this statute is so pathetically weak and narrow that it’s not worth the effort. See below.
This subsection takes effect 1 day after the enactment.
(b) As used in this section–
(1) 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
Note the careful meandering around saying “the child”; it’s always “fetal” this and “fetal” that. Just don’t say that c-word; that would be absolutely crazy. Crazy! Like those Christian people! Many pro-lifers were ecstatic about this act when it passed because it made at least some unborn children legal persons. But it very obviously doesn’t; in fact, it goes out of its way to make sure that no one could possibly construe it as calling these unborn children persons in any legal way.
This statute provides more wiggle room than a cheap escape-artist trick. If the child is being born normally, they can’t kill the child after his head is all the way out; if he’s being born breech, they can’t kill the child after his belly button is out. Even then, though, they may kill the child as long as they didn’t “deliberately and intentionally” deliver the child to that point “for the purpose,” specifically, of killing the child. Wow, that’s sure restrictive!
Think about this. This statute means that, as long as the child accidentally was born to that point, the doctor may still kill him. Furthermore, it means that even if the woman is pushing the child out as hard as she can, and the doctor doesn’t do anything to assist her, and he then kills the child, he’s got no legal trouble whatsoever.
Furthermore, as long as he doesn’t let that head get all the way out, or the “trunk” up to the navel, he can do anything he wants, up to and including sucking the child’s brains out just like he did in the good ol’ days before this horribly restricting act. Just don’t let the head get all the way out. Now, gentle Reader, I don’t know if you’ve ever witnessed a live birth. I’ve seen three so far, in person; the head is always quite visible and accessible well before it actually leaves the mother. It’s certainly accessible enough to get the scissors and the vacuum to it without any serious trouble.
In other words, this act doesn’t restrict partial birth abortion in any meaningful way at all.
(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus; and
So if the child isn’t viable, and for whatever reason the doctor flubbed up sufficiently to allow the child’s head or belly button to be exposed, he can solve his little problem by simply delivering the child and then tossing him into a garbage can to suffocate to death. Because the only “overt act” he did toward killing the child was completing delivery. There’s certainly no crime in not giving any air to the poor baby.
So don’t worry, abortionists; even if you mess up, and the child’s head or belly button comes out, Congress has you covered; just make sure the child is “not viable” and let it die. There’s no overt act there, after all.
(2) the term `physician’ means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in
which the doctor performs such activity, or any other individual legally authorized by the State to perform abortions: Provided, however,
That any individual who is not a physician or not otherwise legally authorized by the State to perform abortions, but who nevertheless
directly performs a partial-birth abortion, shall be subject to the provisions of this section.
A sop to the “back-alley abortionist” theory, that John McCain believes in: that women denied legal abortions will be “forced” into going to these supposed “back-alley abortionists” where they might get hurt in the process of killing their children. Still, no need to fuss; at least it applies even to unlicensed abortionists the nonexistent restrictions of this act. Another victory for the pro-life cause!
(c)(1) The father, if married to the mother at the time she receives a partial-birth abortion procedure, and if the mother has not attained the age of 18 years at the time of the abortion, the maternal grandparents of the fetus, may in a civil action obtain appropriate relief, unless the pregnancy resulted from the plaintiff’s criminal conduct or the plaintiff consented to the abortion.
So what if a mother procures a partial-birth abortion from a doctor who somehow, presumably through sheer incompetence, manages to fall under this statute, without the father’s consent? Don’t worry; the father can sue afterwards! Now, that’s an adequate remedy for the brutal murder of his child! Of course, this statute is basically impossible to violate if you have even half of a functional brain, so nobody will ever get sued over it. But whatever; at least the pro-lifers will feel like they’ve gotten a victory, so they’ll keep voting for Republicans while Republicans keep doing practically nothing for them.
Note here again the careful wordsmithing to avoid that hateful word “child.” They even refer to the grandparents of the poor baby; the baby, however, is always “the fetus.”
(2) Such relief shall include–
(A) money damages for all injuries, psychological and physical, occasioned by the violation of this section; and
(B) statutory damages equal to three times the cost of the partial-birth abortion.
Of course, what could the “psychological and physical” injuries really be, anyway? All she did was “terminate a pregnancy,” ending the life of a “fetus” that isn’t even a person. That can’t effect anyone too much. Certainly not the father; after all, even the child’s own mother was okay with the “procedure”!
(d)(1) A defendant accused of an offense under this section may seek a hearing before the State Medical Board on whether the physician’s conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
Another lifeline to the abortionists. Here we truly see that Congress is absolutely incapable of writing an internally consistent law. In its “Findings” justifying the passage of this law, Congress made the following statements:
[T]he practice of performing a partial-birth abortion . . . is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.
Congress finds that partial-birth abortion is never medically indicated to preserve the health of the mother.
Yet, Congress turns around and says the following in the exact same bill:
This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
A defendant accused of an offense under this section may seek a hearing before the State Medical Board on whether the physician’s conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
Which is it, Congress? If this particular type of murder is never medically necessary, why all the caveats in the law about the statute not applying when it’s medically necessary?
One can only conclude that Congress intended that, in the unlikely event that an abortionist makes such a monumental error that he actually happens to run afoul of this statute, he can still come up with some excuse to get himself off.
(2) The findings on that issue are admissible on that issue at the trial of the defendant. Upon a motion of the defendant, the court shall delay the beginning of the trial for not more than 30 days to permit such a hearing to take place.
Not only does the abortionist get a hearing to decide if what he did was what Congress decided couldn’t possibly be the case, but he’s also allowed to bypass the normal rules on qualification of expert witnesses and hearsay so that an abortionist can use the evidence of his hearing at his trial. Congress simply has to protect those poor, innocent abortionists, after all. The “fetuses,” on the other hand, are different.
(e) A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section, for a conspiracy to violate this section, or for an offense under section 2, 3, or 4 of this title based on a violation of this section.
Absolutely not! Why would we ever want to punish the woman who paid an abortionist to kill her child? That would be like punishing the man who hired the hit man! Of course, we do punish the man who hired the hit man, regularly; indeed, in Virginia, it’s a capital offense under Va. Code 18.2-31. In our current society, avoiding punishing the mother is wise; the legalization of abortion puts her in a position in which moral confusion is quite possible, and even likely. When society unequivocally states that an act is murder, however, and then someone chooses to commit that act anyway, there is no reason in the world why that someone should not be charged with murder.
Of course, this statute doesn’t say that partial birth abortion is murder; indeed, it studiously avoids saying that. It also studiously avoids calling the unborn child a child or a person, constantly referring to “fetuses” and “fetal” parts instead. It also provides more outs than a baseball game for an abortionist who, through carelessness or incompetence, happens to run afoul of its incredibly unrestrictive precepts. In other words, this statute is a waste of the paper it’s printed on; it has no real effect, and might as well be repealed. Which may be why I haven’t been able to find any record of there ever having been a prosecution under this statute to date, though it was passed in January of 2004.
Yet pro-lifers, and the Republicans who play them like happy little marionettes, wave this ban that wasn’t around as a great “victory” for the pro-life cause. Please. It’s the great “let’s sucker them into voting for us again” victory they achieved for their own cause. If we keep falling for it, they’ll keep doing it: passing useless statutes, on the rare occasions that they pass any at all, which really do absolutely nothing to protect the unborn, and then claiming that they’re moving heaven and earth for the sake of the pro-life cause. And we’ll just keep voting for them while they keep doing nothing.
The solution, in my opinion, is to hit them in the only place they understand: their support. Deprive them of our votes; make them realize that we’re serious, even if they aren’t. Then they’ll be forced to actually do something about abortion, instead of just talking about it.
Praise be to Christ the King!
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