April 25, 2004


The Issue That Never Went Away: After 12 years, abortion rights are on trial again. (WILLIAM SALETAN, 4/25/04, NY Times)

The purpose of these inquiries is to try to prove that the so-called partial-birth procedure is never medically necessary, because that's what Congress asserts and the plaintiffs deny. But once this question is resolved, the next round of subpoenas will have a different purpose. It won't be to determine whether partial-birth abortion is ever necessary. It will be to determine whether each partial-birth abortion was necessary.

If the ban is upheld, any doctor found to have performed the procedure will be subject to a two-year prison term unless he or she can prove that the procedure was "necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury." To settle that question, the court will need details about the patient.

Alternatively, if the ban is struck down, Congress will have to add to it what the Supreme Court demanded four years ago: a clause allowing the procedure when necessary to protect the woman's health. That, too, will require details about the patient.

As Mr. Ashcroft puts it, "If the central issue in the case, an issue raised by those who brought the case, is medical necessity, we need to look at medical records to find out if indeed there was medical necessity." That's why the government subpoenaed the records of the doctors who challenged the law. And that's why the government will subpoena the records of any doctor who, having been charged with performing a partial-birth abortion, argues that the procedure was medically necessary. This is what it takes to enforce an abortion ban.

That's the lesson of these trials. For years, Republicans have used Congress and the White House to showcase the ugliness of late-term abortions. The public, naturally repelled, endorsed the so-called partial-birth ban, and Congress enacted it.

But an abortion ban isn't just a moral statement. It's a pledge to prosecute, and prosecution introduces a different kind of ugliness: the public investigation of personal tragedies. That's the ugliness that lies ahead. If Americans won't take that warning from today's marchers, maybe they'll take it from John Ashcroft.

Incest investigations tend to violate the privacy of perpetrators and reveal tragedies too.

Posted by Orrin Judd at April 25, 2004 9:32 AM

Strangely enough, I'm OK with investigating and prosecuting the practice of crushing the skulls of nearly-full-term babies, or ripping them apart limb by limb. I'm OK with putting these "doctors" in jail for a long, long time. Call me kooky!

Posted by: Jeff Brokaw at April 25, 2004 12:18 PM

As long as abortion (as practiced in the U.S.)
serves an essentially eugenic function it will
be legal.

Posted by: J.H. at April 26, 2004 9:23 AM