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Partial-Birth Ban Takes Aim at Right to Privacy

September 30, 2003|William Saletan | William Saletan, chief political correspondent for Slate, is the author of "Bearing Right: How Conservatives Won the Abortion War" (University of California Press, 2003).

This fall, President Bush will sign into law the Partial Birth Abortion Ban Act, the first federal prohibition of an abortion procedure in American history. Pro-life activists will call it the beginning of the end of abortion. Pro-choice activists, eager to scare the public, will agree. But it won't be the beginning of the end because the public won't stand for a broader ban on abortion, and pro-life politicians know it.

The partial-birth ban was invented in 1995, after Republican congressional leaders, chastened by popular resistance, had given up on criminalizing abortions generally. The ban would prohibit a late-term procedure in which the intact fetus is partially extracted but killed before being fully removed. The House passed the ban easily this year.

But the real subtext of the congressional debate wasn't partial-birth abortions. It was the future of Roe vs. Wade, the Supreme Court's 1973 decision that established the constitutional right to abortion. The Senate wouldn't even pass the bill this year until it had added a symbolic declaration that Roe "should not be overturned."

On the floor, pro-choice senators were eager to make it a debate about Roe, which remains popular and constitutionally protected. But pro-lifers wanted the opposite, and they took care to distinguish "partial births" from other kinds of abortion.

The chief spokesman for the ban, Sen. Rick Santorum (R-Pa.), said it was "not a limitation on abortion." Sen. George Voinovich (R-Ohio) said it was a ban on "infanticide" and added: "This is not a vote on Roe v. Wade."

This is the argument pro-lifers have made since 1995: Partial-birth abortion isn't abortion because the fetus is "partially born" rather than unborn. Bush drew the same distinction this year when he asked Congress "to protect infants at the very hour of their birth."

It's a sneaky argument because the "birth" in a partial-birth abortion isn't natural or full-term. It's induced and grossly premature. For that reason, it's generally fatal to the fetus.

Why do Bush and other pro-life politicians obscure this? Why confine the debate to infanticide, not abortion? Their immediate concern was constitutional: A Supreme Court committed to Roe -- which the Rehnquist court is, at least for the moment -- could nevertheless uphold a ban on infanticide. And politically, they just didn't want to reopen the broader question of abortion rights. To separate the two issues, they had to convince the public that the killing in a partial-birth abortion takes place outside the woman's body.

Don't mistake salesmanship for capitulation. Pro-life politicians would ban nearly all abortions if they could, and as soon as this ban is in place, they'll plot their next steps in that direction.

But even pro-lifers know that the earlier in pregnancy you try to ban abortion, and the more circumstances you try to cover, the more the public balks. The last time the Supreme Court came close to overturning Roe was in 1989, when it handed down Webster vs. Reproductive Health Services.

That decision alarmed legions of voters who didn't care about the right to abortion -- or more broadly, the right to privacy -- until they were about to lose it. In Virginia, voters became so focused on it that to stop it they elected a black governor for the first time in U.S. history.

That's why Bush's father ducked the issue of overturning Roe in 1992, and why Bush ducked it in 2000.

And that's why pro-choicers are trying to turn the partial-birth debate into a debate about Roe. They want to reawaken the dormant pro-choice electorate. They want the public to see the partial-birth ban, in the words of Sen. Dianne Feinstein (D-Calif.), as "the beginning of a long march to take women back 35 years ... to the back alley."

But the long march won't end there, if Santorum has his way. He wants the entire foundation on which Roe was built -- the right to privacy -- abolished.

Don't take my word for it. Take Santorum's. In a speech, he denounced the right to privacy, calling it an "acid on the structure of America." The framers, he argued, intended "to give people the freedom to pursue the truth ... not hedonistic happiness, but true happiness that you find in serving others."

This is where Santorum and his allies hope the abortion debate will end: the abolition of individualism through the redefinition of freedom and happiness. The only reason they'll never get there is that you won't let them.

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