Strengthening Constitutional Self-Government

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More on Partial Birth Abortion Bans

While President Bush has signed legislation passed by Congress outlawing Partial Birth Abortion, the Governor of Michigan has vetoed legislation banning partial birth abortion in Michigan.

A former student of mine who is active in Michigan politics, forwarded this brief description of the differences between the legislation passed by the Michigan legislature and the legislation passed by the U.S. Congress:

"Question: The federal government passed a ban on partial birth abortions. Why do we need to pass legislation at the state level?

1. The federal and state approaches to banning partial birth abortions are very different. The federal legislation specifically bans an abortion procedure - namely dilation and extraction or partial birth abortion. The state legislation has the effect of banning partial birth abortions, but the active language of the bill does not even mention abortion. The state legislation simply defines when a person is legally born to be when any part of a child is outside of the mother’s body.
Once a person is legally born, that person is afforded all of the rights of legal personhood and therefore, taking the life of that person by any means would be illegal.

2. Having two very different conceptual approaches gives the pro-life community two opportunities to challenge the practice of partial birth abortion. The federal legislation will ask the courts if there is ever grounds for restricting abortion. The state legislation will ask if the states have the right to define when a child is legally born and legally a person. These are two very different questions.

3. Having two different court cases also means that the court challenges for these two bills will be on different timelines and potentially be heard by different Supreme Court Justices. The federal legislation will
more quickly get a hearing before the U.S. Supreme Court. It will take more time for the state legislation to work through the court system up to the U.S. Supreme Court. There is speculation that two or even three
Justices may retire during President Bush’s tenure. Perhaps by the time the state legislation is brought before the U.S. Supreme Court, some of the sitting Justices will have retired. If they are replaced by
pro-life Justices, the make-up of the Court could be very different and therefore, the decision could be very different.

4. The state legislation is more comprehensive. It does not prohibit only a specific procedure, but instead provides protection to a child once any part of the child is outside of its mother’s body. This bill bans any procedure performed once any part of the child is outside of the mother’s body. This legislation attempts to contain abortion to procedures performed in utero. A ban on a specific procedure such as the partial birth abortion procedure may only encourage abortionists to come up with a new way to kill a partially born child.

5. The state legislation challenges pro-abortion semantics. The pro-abortion side claims that a partially born child is not a person. This logic is used to support the idea that the dilation and extraction procedure is not infanticide. The state legislation challenges the status quo. Killing a partially born child is not abortion. This legislation makes infanticide of a partially born child what it should
be - a crime of murder."

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