If Standing Bear Could Talk . . . Why There Is No Constitutional Right to Kill a Partially-born Human Being

• Publication year: 1998
• Citation: Vol. 33

33 Creighton L. Rev. 23. IF STANDING BEAR COULD TALK . . . WHY THERE IS NO CONSTITUTIONAL RIGHT TO KILL A PARTIALLY-BORN HUMAN BEING

Creighton Law Review

Vol. 33

STEVEN GRASZ(fn*)

INTRODUCTION

In 1868, a government official attempted to justify the killing of Native American children by the U.S. military by stating that "[n]its make lice."(fn1) It was not until 1879 that a federal court held, in the historic case of United States ex rel. Standing Bear v. Crook,(fn2) that Native Americans were "persons" for purposes of federal law. Now, 120 years later, some of the same legal arguments that were made in an attempt to deny civil rights protection to Standing Bear and other Native Americans are once again being made to deny legal protection to other vulnerable human beings. This time, the victims are partially-born children, delivered up to their head and dangling just inches from complete independence. Once again, the threshold legal issue which must be addressed is whether such children are "persons" for purposes of federal law.

In the mid and late 1990s, the United States Congress and the majority of state legislatures separately addressed a growing public concern regarding the controversial medical procedure legally denominated as "partial-birth abortion," and now known medically as "D&X" abortion or "intact D&E" abortion. Legislators across the country were so repulsed by the procedure that twenty-seven states and the United States Congress passed statutory bans on partial-birth abortion.(fn3) As one federal court described it, the partial-birth abortion/D&X procedure "is gruesome and inhumane."(fn4) More specifically, the procedure is described as follows: When the fetus is presented feet first, [the physician], using forceps, pulls the feet of the living fetus from the uterus into the vaginal cavity and then pulls the remainder of the fetus, except the head, into the vaginal cavity to a point where the base of the fetal skull is lodged in the uterine side of the cervi-cal canal. At that point, the size of the head will not permit him to pull it through the cervical canal into the vaginal cavity. To decompress the fetal skull and evacuate the contents in order to pull it through the cervical canal, [the physician] uses an instrument to either tear or perforate the skull to allow insertion of a cannula and removal of the cranial contents.(fn5)

One nurse who actually observed the D&X procedure stated:

I have been a nurse for a long time, and I have seen a lot of death; people maimed in auto accidents, gunshot wounds, you name it. I have seen surgical procedures of every sort. But in all my professional years, I had never witnessed anything like this.(fn6)

She described its effect on a partially-born child as follows:

[The physician] brought the ultrasound in and hooked it up so that he could see the baby. On the ultrasound screen, I could see the heart beat. As [the doctor] watched the baby on the ultrasound screen, the baby's heartbeat was clearly visible on the ultrasound screen.

[The doctor] went in with the forceps and grabbed the baby's legs and pulled them down into the birth canal. Then he delivered the baby's body and the arms; everything but the head. The doctor kept the head right inside the uterus.

The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.

The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp.

I was really completely unprepared for what I was seeing. I almost threw up as I watched [the doctor] doing these things.

Next, [the doctor] delivered the baby's head. He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used. I saw the baby move in the pan. I asked another nurse, and she said it was just reflexes.

The woman wanted to see her baby, so they cleaned up the baby and put it in a blanket and handed it to her. She cried the whole time. She kept saying, "I am so sorry, please forgive me." I was crying too. I couldn't take it. That baby boy had the most perfect angelic face I think I have ever seen in my life.(fn7)

Despite the unprecedented public outcry against this procedure (from both "pro-life" and many "pro-choice" legislators, doctors and citizens),(fn8) most of the state partial-birth abortion statutes have since been enjoined or declared unconstitutional.(fn9) Many of these cases remain in the courts at various stages of litigation or appeal. Due to the number of cases making their way through the courts, and due to several minority decisions upholding partial-birth abortion bans, it is quite possible the validity of the state statutes will ultimately be decided by the United States Supreme Court.(fn10) This article will focus on a threshold constitutional issue, heretofore largely avoided by the lower courts, which should be squarely addressed by the Court in any review of state partial-birth abortion statutes. That issue is whether the legal framework established in Roe v. Wade,(fn11) and its progeny, applies to a child which is more outside the uterus than inside. In other words, is there a constitutional right to kill a partially-born human being - or are partially-born children entitled to the protection of the Fourteenth Amendment?

The article will explain why partial-birth abortion cases can, and should, be decided outside the legal framework of Roe and its progeny, based on the legal classifications concerning personhood created in Roe itself. The right of a mother to abort her child applies, according to Roe, only to "the unborn." Thus, on its face, abortion jurisprudence is limited in applicability to children in utero. The evidence presented in partial-birth abortion cases nationwide makes it clear that the partial-birth abortion/D&X procedure involves a child more outside of the uterus than inside.(fn12) Since there is no Supreme Court precedent preventing the States from protecting partially-born human beings,(fn13) courts need not, and should not, apply the framework articulated in Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey(fn14) to partial-birth abortion statutes.

As discussed below, partial birth places a child in a legal status superior to that of mere chattel. Given that partial-birth abortion cases present an issue involving life and death, and given the states' judicially-recognized interest in fetal life even prior to partial birth, the Court should not place partially-born human beings in the same category as "the unborn" for purposes of reviewing state statutes regulating the partial-birth abortion procedure.

I. THE ABILITY OF THE STATES TO PROTECT PARTIALLY-BORN HUMAN BEINGS IS A QUESTION OF FIRST IMPRESSION AND SHOULD BE SQUARELY ADDRESSED BY THE UNITED STATES SUPREME COURT

Lower federal courts are obliged to follow clear legal precedent regardless of whether it may seem unwise or even morally repugnant to do so. However, a court need not extend questionable jurispru-dence into new areas or apply it in areas outside of where there is clear precedent.(fn15) This is especially true when a federal court is reviewing the validity of a state statute.

As one federal court has noted, "there is no precedent" regarding the treatment of the partially born as persons.(fn16) Therefore, this question is a matter of first impression. In such cases, basic principles of federalism as well as the Supreme Court's admonitions in Casey favor deference towards a state's legislative judgment. As the Court emphasized in Casey, the states' interests in preserving human life have not, heretofore, been given due regard by the lower courts.(fn17) Since there is no precedent prohibiting States from protecting partially-born human beings, it is appropriate to defer to a state's legislative determination rather than the wishes of the most extreme elements of the abortion industry. As shown by the following examples, courts have faced similar questions throughout the history of the development of civil rights in the United States.

In 1856, the United States Supreme Court held that a "free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a 'citizen' within the meaning of the Constitution of the United States" and "the special rights and immunities guaranteed to citizens do not apply to them."(fn18) This infamous decision was eventually overturned by the blood of thousands on the battlefields of the Civil War. Despite the...