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Reflections on the Carhart Case
Part One: Inventors on the Bench

Dateline: 08/13/99
Revised: 4/26/00

Late-term abortions (those after 20 weeks) have been legal in the U.S. since Roe v. Wade came down in 1973. So why are federal and state legislators suddenly in a frenzy of late abortion bans? Why is Leroy Carhart spending so much money fighting Nebraska's efforts to ban a single technique out of many? A little history is in order.

Before Roe v. Wade, there was literally no such thing as a late term abortion. If you look in dictionaries and medical books, you'll see that the definition of "abortion" is the termination of a pregnancy before the fetus is mature enough to survive outside the womb. Such procedures were illegal for most of the 20th century. But if abortion -- elective destruction of the fetus before viability -- was illegal, what happened if a woman's life was in danger late in the pregnacy?

There used to be few options for those instances. Before antibiotics, a c-section had a high maternal mortality rate. Some doctors weren't willing to place the woman in this great a danger and would instead perform the "destructive operation." This involved crushing the emerging infant's skull with an evil-looking device called a cranioclast. Since killing the infant was such a drastic act, it was a great balancing act for the doctor, who would try to wait until the baby had died before crushing its skull. But if he waited too long, the laboring mother might die. These were not elective procedures chosen by mothers who simply changed their minds about having a baby -- they were desperate, life-saving measures.

Doctors who used the "destructive operation" in good conscience were not prosecuted. So we see, even back in the "bad old days" when abortion was illegal, doctors were still permitted to take whatever steps were necessary to save a laboring mother's life. But such procedures were not classed as abortion -- which was destroying the fetus before it was old enough to survive outside the womb. These were cases of feticide which simply were not prosecuted. No reputable doctor would dream of destroying a viable infant for any reason other than to save the mother's life.

After the advent of antibiotics, emergency c-sections replaced the "destructive operation." If the mother's life was endangered late in the pregnancy, both mother and child could be saved. This was hailed as a great medical triumph. The idea of deliberately killing a viable late-term infant was a horrific reminder of the pre-antibiotic days of the cranioclast -- a return to the medical "dark ages."

Now, however, deliberately killing an infant that could be born live is no longer feticide. It's abortion -- a protected right. So what happened? The answer is that the Supreme Court, in writing Roe, made up their own definition of abortion -- the killing and removal of a fetus at any stage of gestation. Late term abortions, in short, were invented by the Supreme Court. What had been a barbaric reminder of the horrific days predating antibiotics was suddenly couched as progressive and liberating.

And what was the status of these newly-invented abortions? Were they reserved for life-threatening situations? Roe said that the states could, if they chose, ban such abortions as long as the ban includes provisions for protecting the health of the mother. To put the final flourish on their new invention, the Supreme Court handed down a companion decision to RoeDoe v. Bolton. Doe defines maternal health in such broad terms that simply wanting the abortion would meet the criteria. If a woman can convince a doctor to do the abortion, it meets Doe's "health" standards.

So, with a few words, the Supreme Court invents late-term abortions and allows the states to ban only those late-term abortions doctors in that state are unwilling to do. Although these feticides are defended as necessary on "medical" grounds, this defense is patently facetious. Modern medicine had progressed to where destroying the infant was no longer necessary to save the mother's life. The cranioclast had been relegated to the museum -- suitable for a chamber of horrors. Why, in a time when no viable infant need die to save his mother's life, is such destruction suddenly defensible? That's a question abortion defenders evade.

NEXT: The New Invention Put Into Practice

The Reflections on the Carhart Case series:

Part 1 - Inventors on the Bench
Part 2 - New Invention Put Into Practice
Part 3 - Addressing The Problem
Part 4 - New Opportunities
Part 5 - NAF and NRC Collide
Part 6 - Now What?

Previous Articles

For more on Partial Birth Abortion:
Background on Abortionist Leroy Carhart
Partial Birth Abortion
Partial Birth Abortion Lies
Semantics and the Carhart Case
The Muddy Waters of Partial Birth Abortion

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