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The Lethal Loophole: When do Constitutional Rights Begin?


Illustration courtesy of Dr. Anthony Levatino 505-521-0105

Current activities in Congress indicate that another duel with President Clinton over the procedure known as partial birth abortion is looming. Rep. Charles Canady (R-FL), the chief proponent of the measure to ban this practice, presented a third version of the bill, which passed in the House of Representatives on April 5. The final vote was 287 to 141, which reflects a margin large enough to overturn an inevitable veto by the president. But obstacles still persist within the Senate, where the number of votes needed to override a veto appear to be lacking.

Because of the crudeness of details and the accompanying discomfort associated with discussion of this controversial method of abortion, debate has oftentimes been stifled or misdirected. But the very notion of a partial birth raises some important constitutional questions. If we desire to remain a nation where legal principles preserve individual rights, the questions that surround this critical issue must be explored.

In the normal process of childbirth, the fetus moves from the womb through the cervix on a path to “personhood.” Somewhere along this path constitutional rights are vested. The vital question is, when do those rights attach?

Under the present law as currently interpreted by the Supreme Court, the unborn have no constitutional rights. Constitutional rights attach upon birth. But the Court has yet to determine whether constitutional rights attach to those who are “partially born.”

Previous Supreme Court decisions concerning the validity of abortion laws have distinguished between the rights of states to regulate abortions in the second half of pregnancy as opposed to earlier in the gestation cycle. Decisions have also expressed the idea that regulation would be acceptable when the fetus could be considered “viable.”

The language and reasoning of the Court seem to grant more consideration to the fetus as it comes closer in time to viability. The Court has never given women the right to end the life of the viable “developing child.” In fact, the opinion in Planned Parenthood v. Casey stated that the viable “independent existence” of the child should be provided state protection that “overrides the rights of the woman.”

What is referred to as partial birth abortion is a technique known to practitioners as dilation and extraction (D and X). It is utilized after the twentieth week of pregnancy. With the assistance of ultrasound, the physician conducting the procedure rotates the fetus while it is still inside the womb. The entire body is then pulled out of the birth canal with the exception of the head. The base of the skull is pierced using surgical scissors. The physician inserts a catheter into the opening and suctions out the contents of the skull. Once the skull is manually collapsed, the dead fetus is removed.

The first time a description of this procedure ever appeared in a mainstream publication was in 1989. On December tenth of that year, The Dayton Daily News contained a story concerning Martin Haskell, M.D.

A college student had observed Dr. Haskell in the process of conducting abortions. Disturbed by what she had witnessed, the student filed a police report claiming that a baby had been murdered. Apparently, the police accepted that no crime had been committed since the baby’s head remained inside the mother when its life was ended.

We must stop and reflect upon these circumstances to fully realize the determination that was made here. Imagine a physician carefully positioning a fetus in a manner so similar to that of a doctor attempting to deliver a baby with one primary distinction. The process was halted at a precise moment for no other reason than to create what can only be viewed as a legal loophole.

Otherwise, why did not the doctor deliver the entire fetus and end its life outside of the birth canal? It would be easier for the physician to see where to insert the scissors and catheter, and it would provide greater accessibility to perform the necessary tasks.

The partial birth abortion procedure requires that the physician remove the fetus from the womb and guide it to the very end of its passage from being a legal non-person to a legal person. At the moment the fetus is on the brink of becoming a constitutional person, the voyage is abruptly stopped, inches away from this “personhood,” and the life is terminated.

It is easy for us to visualize state protection vested in a fetus whose body has partially emerged head first from the birth canal. A breech birth baby, with his or her entire body exited from the birth canal with the sole exception of the head, would seem to be equally entitled to state protection. How then as a society can we assert that a viable, partially born fetus should be denied the same protection under the law? We appear to be embracing an inconsistent, immoral, legally schizophrenic philosophy that can neither be logically defended nor honorably maintained.

It is tragic that a fetus who has completed the pilgrimage from the womb to the world to the extent that his or her arms, legs, fingers, toes, heart, lungs and the vast majority of his or her body is outside of the mother would be viewed as having no constitutional rights. If the public can give voice to the cries of the little ones yet unable to be heard, perhaps the previously unmoved members of the Senate will be infused with the necessary conscience and courage to abolish this savage practice.


Hirsen, Dr. James. “The Lethal Loophole: When do Constitutional Rights Begin?”Newsmax (April 6, 2000).

Permission to republish by Dr. Hirsen and

Copyright © 2000




Copyright © 2004 Victor Claveau. All Rights Reserved