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The supreme court decision in June striking down Nebraska's partial-birth abortion law has left many partial-birth critics wondering what to do next. As an attorney who has been in the trenches of the partial-birth abortion legal battle from its inception, I would give this advice to those well-intentioned state legislators who seek to draft new laws designed to survive Supreme Court scrutiny. At least until the composition of the Court changes, any redrafted law would be futile and meaningless at best, distracting and destructive at worst. Like every one of the 30 partial-birth abortion bans nationwide, the Nebraska law contained an exception for the woman's life. However, the Court struck down the Nebraska law because it did not have an exception for the woman's "health." In her concurring opinion that provided the necessary fifth vote, Justice O'Connor states that a ban "that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view."This seems like a reasonable invitation for states to give it another try. In reality, this is an invitation for the states to enact a hollow partial-birth abortion ban in which the exception would swallow the rule. That's because in the abortion context, health has come to mean abortion on demand through all nine months of pregnancy, and now even through the process of birth itself. In common parlance, health usually means physical well-being. Yet for 27 years the Supreme Court has defined health in the abortion context as "all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the well-being of the patient." The Court articulated this boundless definition of health in Doe v. Bolton, a companion case issued on the same day as Roe v. Wade. Thus, requiring a Doe health exception means that a doctor can perform a partial-birth abortion on a healthy baby of a healthy mother who may find the late-term pregnancy just too emotionally stressful. The Court's limitless definition of health is why Justice Kennedy's dissent characterized O'Connor's redraft suggestion as "meaningless."Some, including myself, have considered suggesting that partial-birth bans could be redrafted with a health exception limited to significant long-term physical risks. After all, that could force the Court to revisit its broad definition of health in the abortion context. However, I join in the opinion of many attorneys who have defended partial-birth bans that such legislation would do more harm than good given the Court's current composition. First, it would mislead the public into thinking that there is an effective legislative solution that would satisfy this particular Court. Second, it would waste limited resources by funneling tax-dollars to abortion-advocate lawyers who are awarded attorney fees after each of their many court victories. But most importantly, it would distract the public from putting the necessary effort into the presidential campaign, which is the only viable political redress, given that the next president will likely appoint several new justices.The partial-birth abortion decision is just one example of a dangerous trend in American political life; we have been too willing to surrender our system of self-government to a group of nine unelected lawyers, most of whom are taken with judicial activism.To be clear, judicial activism is legitimate and necessary when based upon principled law and justice, such as was required in the civil-rights decisions that protected the interests of minority groups against the popular will of the people. However, a decision granting constitutional protection to killing a live child during birth is an unjust and unprincipled "policy judgment couched as law," as so aptly described by dissenting Justice Scalia.In the Louisiana case now pending before the U.S. Court of Appeals, I argue that partial-birth bans serve the legitimate state interest of constructing a firewall between abortion and infanticide, and that abortion jurisprudence simply does not govern statutes that regulate birth. Yet unless the Supreme Court reaches those still unaddressed legal issues, a redrafted partial-birth abortion ban with a health exception is the same as no ban at all. I urge partial-birth critics to focus on stopping this unreasonable judicial activism by exercising our power at the polls.Dorinda C. Bordlee, Louisiana's special assistant attorney general, was lead counsel in defending that state's partial-birth abortion ban.Matters of Opinion is an occasional department that allows discussion of perspectives not necessarily shared by Christianity Today or the evangelical community as a whole. It is intended to encourage dialogue, and we welcome readers' responses.—The Editors

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August 7 2000, Vol. 44, No. 9