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Mississippi Law Journal

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In explaining his constitutional objection to Wisconsin’s partial-birth abortion ban, Judge Richard Posner contrasts killing during “normal labor” with partial-birth abortion. The former can be constitutionally prohibited, but the latter cannot. Why the distinction? For Posner, the former involves “killing a live baby that is half-born,” whereas the latter does not. This article will show that Judge Posner is correct to assert that killing a baby in the midst of the birth process is not constitutionally protected. But Judge Posner is wrong to say that partial-birth abortion does not kill “a live baby that is half-born.” This article will demonstrate that the partial-birth procedure in fact does kill a baby during its birth. Ban-proponents are correct in their long-standing argument that the partial-birth procedure is not really an abortion. Consequently, Roe, properly understood, is inapplicable to partial-birth abortion bans. Courts, however, including the U.S. Supreme Court in Carhart II, have nonetheless routinely used the analytical framework of Roe and Casey to evaluate bans. This common mistake undermines current partial-birth abortion jurisprudence. The rational basis test, not Roe/Casey, is the proper evaluative tool. Using the correct standard could have significant consequences for future challenges to the federal ban and to the bans of the various states.


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