A three-judge panel of the 6th U.S. Circuit Court of Appeals struck down the 2004 Legal Birth Definition Act yesterday, which had passed as law in Michigan state. The law would have banned the late-term abortion procedure known as dilation and extraction (D&X). There are two variants of this procedure.
The first, commonly known as "partial-birth abortion," is performed by delivering the baby intact, up to the mid-section. With the head still in the mother, the surgeon takes a pair of blunt curved Metzenbaum scissors and forces them into the base of the child's skull. The surgeon then removes the scissors and introduces a suction catheter into this newly formed hole and evacuates the skull contents. With the head collapsed, he delivers the dead baby.
The second variant of a D&X procedure involves the doctor, often guided by ultrasound, inserting grasping forceps through the woman's cervix and into the uterus to grab the pre-born child. The doctor grips a fetal part (arm or leg) with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes.
Now the reason I describe (using language borrowed almost verbatim from that used by the Supreme Court in Gonzales v. Carhart) and distinguish between the two procedures (performed on babies of same gestational age), is because the 6th Circuit Court ruled the Michigan law unconstitutional precisely because it banned both forms of D&X, and not just one form -- as was the case of the Supreme Court's recent decision (Gonzales v. Carhart; April 18, 2007) which upheld the Partial-Birth Abortion Ban passed by Congress.
To ban D&X entirely would be, according to the three-judge panel in Cincinnati, to place an "undue burden" on the woman.
(Never mind the "undue burden" dismemberment causes a healthy 24 week unborn baby.)
The Legal Birth Definition Act was approved by the (Republican controlled) Michigan Legislature in June 2004. It had also gathered the support of some 460,000 Michiganians who provided their signatures as a way to get around the veto of Democratic Governor Jennifer Granholm.
No matter. Three judges see the Act as a clear violation of the U.S. Constitution. All was in vain.
But they console us, saying, "We certainly are reluctant to interfere with a statute that represents the will of the elected representatives of the people of Michigan, and do not do so lightly." (Northland Family v. Cox, June 4, 2007)
We understand. These honorable statesmen, while sympathetic to the wishes of the people, are nonetheless compelled by a moral imperitive to "reluctant[ly]...interfere." They are urged on, fulfilling the trying -- but noble -- office of judge-ship, to uphold a woman's right to dismember her unborn child, as defined in the Constitution.
We are a government of the judges, by the judges, for the judges.