When the Supreme Court upheld the Partial Birth Abortion Ban Act in 2007, abortionists who had been insisting partial-birth abortions were necessary to protect women’s health instantly stopped doing them. At least, that’s what we are supposed to believe.
But the recent videos released by the Center for Medical Progress indicate that Planned Parenthood abortionists, at least, may still be engaging in this horrific practice of partially delivering and destroying an unborn child—specifically for the purpose of obtaining human organs for sale. That would be illegal. The real alternative to Planned Parenthood having violated the Partial Birth Abortion Ban Act (PBABA), however, isn’t that Planned Parenthood is blameless. It’s that Planned Parenthood and its allies in the abortion industry lied to the public and to the U.S. Supreme Court.
Lying to the Supreme Court
In fall 2006, the Supreme Court considered PBABA’s constitutionality. The law lacked any “health” exception, but exempts the mythical case in which a partial-birth abortion is necessary to save the mother’s life. Congress heard evidence and determined there were no cases where partial-birth abortion was medically necessary. It also knew abortionists would turn any “health” exception into an unlimited partial-birth abortion license.
Abortionists argued that approximately 2,200 partial-birth abortions per year (roughly six per day) were necessary—that particular method—for health reasons. That’s a small fraction of the more than 1 million abortions performed annually (nearly 3,000 per day). But the abortion industry fought to maintain this particularly gruesome method, insisting it was a medically necessary “last resort.”
But in April 2007 the Supreme Court held in Gonzales v. Carhart that the law was facially constitutional. The 5-4 decision allowed the restriction on this particularly gruesome abortion method to go into effect. Let’s assume the rhetoric of Planned Parenthood and its allies is true, that another abortion method could not be used in those cases. That would mean the PBABA has prevented nearly 19,000 of the most gruesome and dehumanizing abortions since the Supreme Court upheld it.
Are Partial-Birth Abortions Ever Necessary?
But there was a catch in the Supreme Court’s decision. The court called the abortion industry’s bluff. It invited any abortionist or woman to show a court why this partial-birth abortion method really was necessary (as claimed) in one of those 2,200-per-year instances and thereby obtain an injunction against the law, allowing a partial-birth abortion in that situation. Justice Ginsburg wrote in dissent:
If there is anything at all redemptive to be said of today’s opinion, it is that the Court is not willing to foreclose entirely a constitutional challenge to the Act. ‘The Act is open,’ the Court states, ‘to a proper as-applied challenge in a discrete case.’ … One may anticipate that such a preenforcement challenge will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.
Indeed. If those asserted harms to women’s health were based in reality one might expect that either the same plaintiffs in the Gonzales case and its companions or others would have sought such an injunction. Eight years later, no such complaint has ever been filed by any plaintiff. More Third Amendment complaints have been filed in that same eight-year period than the partial-birth-abortion ban challenges the court invited.
I have previously argued there are only three possible reasons why these anticipated as-applied challenges have never materialized. (1) By incredible fortune, the threats to women’s health that formerly made partial-birth abortion necessary ceased on April 18, 2007. That’s the cessationist argument. (2) Women are harmed by their lack of available partial-birth abortion, just as abortionists warned, but Planned Parenthood and its allies lack the resources to file the invited lawsuits. This is unlikely, given Planned Parenthood’s litigious nature and its $765 million in excess revenues over the last decade. Or (3) the claim that partial-birth abortions were necessary to protect women’s health was a lie. There is reason to buy stock in the “lie” thesis.
The Fourth Option: Breaking the Law
But I may have overlooked a fourth option. The Center for Medical Progress videos force us to consider the possibility that Planned Parenthood and others in the abortion industry have never sought an as-applied exemption from PBABA because it’s easier just to violate that law.
In earlier videos, Planned Parenthood senior executives indicated a willingness to change abortion methods in ways that sounded very much like partial-birth abortions to obtain the human organs they wanted. Planned Parenthood Senior Medical Director Deborah Nucatola even said PBABA was “up to interpretation,” and that some abortionists would use a certain protocol to ensure it wouldn’t appear they had intended a partial-birth abortion. In the most recent video, another Planned Parenthood abortionist in Texas describes converting 18- to 20-week pregnancies to breech in order to obtain better organ samples, in a method that sounds very much like the definition of a partial-birth abortion.
As investigations of Planned Parenthood continue, Congress and states should be particularly attentive to the possibility that Planned Parenthood is regularly violating the Partial Birth Abortion Ban Act. Even if proof of those violations is elusive, we still deserve answers about whether Planned Parenthood and its allies lied to the courts and the public in arguing against the law.
If Planned Parenthood and other abortion businesses suddenly stopped using the partial-birth abortion method in 2007 despite telling courts and the public this method was necessary for women’s health, where are their actual examples of harm to women? Were they lying then, or are they violating the law now?