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Tuesday, June 01, 2004

Posted by Tanstaafl
Federal judge:?Late-term abortion ban unconstitutional:

In the banned procedure -- known as intact dilation and extraction to doctors, but called partial-birth abortion by opponents -- the living fetus is partially removed from the womb, and its skull is punctured or crushed.

"Living fetus" is an interesting choice of words. At least the article is willing to acknowledge that the fetus is probably "alive" at least in the last instant before it is delivered, even if the judge is not. I have a more practical question, however. Under what situations are women unable to decide that its necessary to have an abortion until its too late to have a typical abortion, and necessary to have a partial-birth abortion? Furthermore, I'm far from a constitutional law scholar, but I thought that Roe v Wade, protected a woman's right to choose in the first trimester. Did this judge just extend that right up to the point of birth?

Matt -- In answer to your second question, the whole "trimester" thing was just a judge trying to be practical about the effects of their decision to protect abortion. Since it would be unacceptably vague to just say "Abortion should be legal sometimes, and not others" the following was established (found here):
Roe's trimester-based analysis generally prohibits regulation of abortions in the first trimester, allows regulation for protecting the health of the mother in the second trimester, and allows complete abortion bans after six months, the approximate time a fetus becomes viable.
While practical, this is obviously stretching the limits of how much the courts can "make law". As a result, a 1992 case (Planned Parenthood v Casey), threw that out in favor of this test:
Does the regulation in question place an undue burden on a woman's right to choose an abortion?
So the judge in the partial-birth case basically decided that the law failed this test. A "viable" fetus of the third trimester would not presumably fail this test since it would be a "due" burden on the abortion right.

As for your first question? Well I imagine it varies from case to case. The article indicated that only 10% of abortions are performed in the second trimester. Obviously it would be better for everyone if this number could be diminished down to only those with extenuating circumstances. This leads me to my current theory which is that for an abortion policy to function in society, two active uncompromisingly opposed sides have to exist: The Pro-Choicers have to exist to maintain some form of abortion rights in order to protect women's equality within society, while the Pro-Lifers have to exist in order to maintain enough discomfort for the idea within society to prevent the taking of abortion (and thus life itself) for granted. In otherwords: "We have to be able to have abortions, but we must always find them abhorrent."


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