That’s what happened in recent days, when Congress passed and President Bush signed a bill outlawing what its opponents call partial-birth abortion.
Some things should be understood about this procedure. One, it’s gruesome, as all late-second- or third-trimester abortions are. Second, it’s extremely rare. Third, it’s almost always performed to preserve the life or health of the mother, as most state law now requires. And, fourth, other methods of late-term abortion exist, but they often render women incapable of having children.
Three years ago the U.S. Supreme Court struck down a similar Nebraska law, in large part because it made no provision for the health of the mother, as constitutionally required.
This time, Congress got around that by declaring that the procedure is never medically indicated to preserve the health of the mother. This is in direct contradiction to the American College of Obstetricians and Gynecologists, which has said the procedure might be absolutely the correct procedure in certain situations to protect the mother’s health.
In other words, Congress and the president, ignoring medical authority, have directly interposed themselves into medical decision making and the private relationship between doctor and patient. Clearly, this is an opening move toward eventually overturning Roe v. Wade, the 1973 Supreme Court ruling making abortion a private matter between woman and doctor.
Legal challenges have been filed against the new law, and it will soon be in the courts. We hope there it will be seen for what it is, an end run around constitutional privacy protections.