Last week, pro-lifers won their biggest victory in 40 years: a Supreme Court decision upholding the Partial-Birth Abortion Ban Act. This week, they announced their next target. Douglas Johnson, legislative director of the National Right to Life Committee, concluded that the court's ruling "should give encouragement to the legislators who are pursuing other types of regulation," particularly bills that "require the abortionist to offer the woman an opportunity to view an ultrasound" of her fetus.
For pro-lifers, this segue is logical. For the court, it means trouble. It threatens to unravel the latest judicial compromise and, with it, Roe v. Wade. In its April 18 ruling, the court treated abortion like an obscenity—something that could be done, but not out in the open. Partial-birth abortions, the court reasoned, could be banned because they occur outside the woman's body. Other abortions need not be outlawed, since the womb conceals them.
Ultrasound dissolves this distinction. It offers to make every fetus and every abortion visible. It forces the court to renounce either the partial-birth ban or the right to abortion.
For 34 years, the court allowed states to regulate but not ban pre-viability abortions. That era ended April 18. Justice Anthony Kennedy, writing for the court, ruled that the partial-birth ban was compatible with Roe because abortions other than the partial-birth kind would remain legal.
Kennedy's colleague, Justice Ruth Bader Ginsburg, ridiculed this distinction. The partial-birth ban, she pointed out, "saves not a single fetus," since it allowed the doctor to tear apart the fetus inside the womb instead of pulling it partway out before killing it. "[T]he notion that either of these two equally gruesome procedures … is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational," she wrote.
Kennedy replied that the selective ban was rational because partial-birth abortion, unlike internal dismemberment, "occurs when the fetus is partially outside the mother" and therefore had a "disturbing similarity to the killing of a newborn infant." This similarity, he argued, gave Congress reason to believe that the partial-birth procedure uniquely "undermines the public's perception" of medical ethics and would "coarsen society to the humanity" of innocent life.
In other words, it's rational and constitutional to ban abortions based on how they look, not what they are. Inside the womb, a fetus bears just as much similarity to an infant as it does outside. But killing the fetus inside is OK, because the public won't perceive and be "coarsened" by what's being done.
That's a pretty cynical distinction. It's hard to accept if you see abortion as a woman's right. But it's even harder to accept if you see abortion as the taking of a human life. That's one reason why pro-lifers are turning their attention from partial-birth abortion to ultrasound, from the fetus outside the body to the fetus within. They're trying to open, in their words, a "window to the womb."
Pro-lifers are often caricatured as stupid creationists who just want to put women back in their place. Science and free inquiry are supposed to help them get over their "love affair with the fetus." But science hasn't cooperated. Ultrasound has exposed the life in the womb to those of us who didn't want to see what abortion kills. The fetus is squirming, and so are we.