In writing the 2003 federal law banning partial-birth abortion, Congress listed a number of “findings” or rationale for why the late-term procedure should be prohibited. This rationale includes:

• “A moral, medical and ethical consensus exists that the practice of performing a partial-birth abortion ... is a gruesome and inhumane procedure that is never medically necessary.”
• “A child that is completely born is a full, legal person entitled to constitutional protections afforded a ‘person’ under the United States Constitution. Partial-birth abortions involve the killing of a child that is in the process, in fact mere inches away from, becoming a ‘person.’ Thus, the government has a heightened interest in protecting the life of the partially-born child.”
• “The gruesome and inhumane nature of the partial-birth abortion procedure and its disturbing similarity to the killing of a newborn infant promotes a complete disregard for infant human life.”
• “The vast majority of babies killed during partial-birth abortions are alive until the end of the procedure.

Some of the rationale for banning partial-birth abortion was underscored in the Supreme Court’s 5-4 decision last week upholding the constitutionality of the law. And the court emphasized some key points that often have been obfuscated in the abortion debate.

The court recognized that abortion involves the taking of a human life and that government has a legitimate interest in preserving and protecting fetal life.

Citing a previous court decision, Justice Anthony Kennedy’s majority opinion said “government may use its voice and its regulatory authority to show its profound respect for the life within the woman,” and the law’s “ban on abortions involving partial delivery of a living fetus furthers the government’s objectives.”

“Congress determined that such abortions are similar to the killing of a newborn infant,” he added. “This court has confirmed the validity of drawing boundaries to prevent practices that extinguish life and are close to actions that are condemned.”

The partial-birth abortion law, Kennedy said, “expresses respect for the dignity of human life.”

The majority opinion also noted that the law “recognizes that respect for human life finds an ultimate expression in a mother’s love for her child,” and that whether to have an abortion “requires a difficult and painful moral decision which some women come to regret.” Because of the difficulty of the decision, he said, some doctors might prefer not to disclose the precise details of the abortion procedure.”

Such lack of information also is a “legitimate concern” of government, he said. “The state’s interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers and society as a whole of the consequences that follow from a decision to elect a late-term abortion.”

One looming question is what effect this ruling might have on other issues, including additional restrictions on and regulations of abortion. If government has a legitimate interest in preserving and protecting unborn human life, how far can this reach? If the partial-birth abortion procedure is recognized by the high court as “brutal and inhumane,” could it not be argued that this also extends to other abortion procedures?

These questions were not addressed in the decision. The ruling was limited to the procedure defined in the 2003 Partial-Birth Abortion Act. In what the law calls partial-birth abortion — also referred to as “intact dilation and extraction” — a live fetus is partially delivered and an incision is made at the base of the skull, through which the brain is removed, and then the dead body is delivered the rest of the way.

Besides upholding a ban on an procedure that is akin to infanticide, the decision raises hope — and perhaps lays needed legal foundation — for reconsideration of legalized abortion in American society. As Cardinal Justin Rigali of Philadelphia, chairman of the U.S. bishops’ Committee for Pro-Life Activities, said:

“We hope (the April 18) decision marks the beginning of a new dialogue on abortion, in which fair-minded consideration will be given to the genuine interests of unborn children and their mothers, to the need for an ethically sound medical profession and to society’s desperate need for a foundation of respect for all human life.”