The recent Supreme Court decision upholding the federal “Partial-Birth Abortion Ban Act” (Gonzales v. Carhart) attempts to draw a bright line between infanticide and abortion. Supporters of the ban hold that a procedure called “intact dilation and extraction” (intact D&E, or D&X) is a form of infanticide, whereas a procedure called “nonintact dilation and extraction” (D&E, or dilation and evacuation) can, for now, remain on the abortion side of the line.
According to Solicitor General Paul Clement, "The basic point of this statute is to draw a bright line between a procedure that induces fetal demise in utero and one where the lethal act occurs when the child or the fetus, whichever you want to call it, is more than halfway outside of the mother's womb…" (Washington Post, 11/9/06)
The odd assumption behind “partial birth” abortion bans is that a bright line can be drawn on the basis of where the fetus is in the mother’s body when it is killed, rather than on the basis of the age of the fetus when it is killed (before or after viability), or how gruesome the method of killing is (intact D&E involves collapsing the fetus’s skull, nonintact D&E involves dismembering the fetus). In a recent discussion on a legal blog, one law professor poses the following questions: “What if Congress concludes, based on the Silent Scream videos that we've all seen, that all second-term abortions have a disturbing similarity to infanticide? Or what if Congress decides to ban the D&E procedure entirely, because it involves tearing the fetus apart, limb from limb?” (conlawprof, 4/19/07)