Autonomy and the Partial-Birth Abortion Act Marina Oshana Introduction “Just as you can’t be a little bit pregnant, you can’t be a little bit deprived of the right to control your body.” 1 So began Elizabeth Edwards in a speech to Planned Parenthood on July 17, 2007. Yet, since Roe v. Wade (410 U.S. 113) was decided in 1973, the United States courts steadily have been depriving women of just this legally enshrined right, bit by incremental bit. The most recent move in this direction began, ironically, with a sign of hope. This was in June 2000, when the United States Supreme Court decided, in Stenberg v. Carhart (530 U.S. 914), that the state of Nebraska’s “partial birth abortion” statute violated the Federal Constitution, as interpreted in Planned Parenthood of Southeastern Pa. v. Casey (505 U.S. 833), and Roe v. Wade. In 2003, in response to this decision, the Congress of the United States passed the Partial-Birth Abortion Act (18 U.S.C. §1531, hereafter “the Act”), prohibiting the use of certain methods of ending fetal life in the second and third trimesters of pregnancy—specifically, any method of abortion that is not necessary to save the life of a mother, in which the physician: (A) deliberately and intentionally vaginally delivers a living fetus until . . . the entire fetal head [. . .] or [. . .] any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, which kills the partially delivered living fetus. 2 It is worth noting that the prohibited procedure is decidedly less invasive, and so arguably less of a health risk, than the more commonly employed dilation and evacuation (D&E) method. The disputed “intact D&E” requires the physician to puncture or crush the skull of the living fetus in order to pass the head through the cervical canal, and then remove the entire body from the uterus. By contrast, in the more common method, the doctor dilates the cervix and then inserts surgical instruments into the uterus to pull the fetus through the cervix and vagina. The fetus is dismembered as it is removed. The doctor may take ten to fifteen passes to remove the fetus in its entirety, each time introducing the risk of infection and wounding of the cervix and vagina. Nonetheless, Congress alleged that “there was JOURNAL of SOCIAL PHILOSOPHY, Vol. 42 No. 1, Spring 2011, 46–60. © 2011 Wiley Periodicals, Inc.