"Post-Birth Abortions" (Warning: "NSFW" and Probably NSF My Reputation)

Mark Tushnet

With some trepidation but on the theory that it often makes sense to try to understand positions taken by those with whom one has deep disagreements, here’s my stab at the claims that my side would allow killing infants after very late term or post-birth “abortions.” My side responds that such actions are clearly infanticide in the latter instance and are probably infanticide in the former as well if the fetus/infant is “viable”—and are unlawful everywhere.

Roe clearly allows states to substantially restrict the availability of very late term abortions, etc., but it doesn’t require that they do so. Some of the proposals to protect the right to choose, opponents say, would allow such abortions/procedures. (I note that proposals to “restore Roe” wouldn’t in themselves do so. But, I’m reasonably sure that most supporters of “restore Roe” legislation have more than Roe in mind because, for example, such supporters want to repeal the Hyde Amendment, which according to the Supreme Court is compatible with Roe. And some supporters of “restore Roe” legislation would almost certainly press for expansive interpretations after enactment—including an interpretation that would require the state to allow very late term abortions. But what “restore Roe” means isn’t my concern here.)

The question then is, what do those proposals say about the treatment of the infant afterwards? Opponents refer to former Virginia governor Ralph Northam’s statement that “a discussion would then ensue between the physicians and the mother.” I think the most sensible interpretation of Northam’s statement, one that he later sort of confirmed, is that actions taken with respect to the infant would have to meet the medical standard of care required in the circumstances. Sometimes that standard of care would require substantial efforts to sustain the infant’s life; sometimes it would be, “let nature take its course”; and sometimes—I suspect rarely—the standard of care would allow doctors to take active measures that would have the effect of ending the infant’s life (the equivalent to the standard of care applicable to end-of-life treatment of anyone else). The bottom line, then, is that the “post-birth abortion” argument is actually about euthanasia: “Killing babies” is the rhetorical equivalent of “killing Grandma.” And serious arguments for and against allowing euthanasia are typically pretty complicated and nuanced.

In today’s political climate I don’t think we can expect arguments (about anything, really) to be developed with any degree of nuance, and so—to be clear—I’m comfortable with the response in daily political rhetoric from my side that no state permits infanticide. But there’s more substance to the other side’s arguments than that rhetorical dismissal suggests.