On Wednesday (November 7, 2006), the Supreme Court of the United States will hear oral arguments two cases involving Congress's ban on partial-birth abortion. In both cases, the lower courts of appeals held the federal Partial-Birth Abortion Ban Act unconstitutional. Those courts are wrong and the Supreme Court should reverse them. The Partial-Birth Abortion Ban Act only applies to the partial-birth abortion of a child that is partly outside the body of the mother. Even under Roe v. Wade and its progeny, the ban on partial-birth abortion of a child partly outside the mother's body is a valid, indeed essential, barrier against the practice of infanticide. None of the Court's prior abortion cases addressed a procedure that many, including Justices of the Supreme Court, consider to be infanticide. The federal Partial-Birth Abortion Ban Act operates at the borderline between pre-natal and post-natal human life. Born human children indisputably enjoy the basic rights secured to all "persons" under the Fourteenth Amendment. It, therefore, cannot be doubted that there is a legitimate and even compelling state interest in protecting such children from harm. Hence, governments have a compelling interest in preventing the spread of the practice of abortion into that of infanticide. The Partial-Birth Abortion Ban Act furthers precisely that interest. As one judge recently phrased it, the Partial-Birth Abortion
Ban Act protects the unborn child's "emerging right to life" and furthers the "compelling interest in protecting the line between abortion and infanticide."
Partial-birth abortion procedures represent the beachhead of the assault on post-natal life, the bridge between abortion and infanticide. Absent strong legal barriers and vigorous societal condemnation, partial-birth abortion procedures open the way to legal infanticide. As Justice Kennedy noted in the previous partial-birth abortion case out of Nebraska, Stenberg v. Carhart, "States also have an interest in forbidding medical procedures which, in the State's reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus."
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