Additional thoughts on late-term abortions.

If the Administration and Congress were serious about having a law that would pass constitutional muster, Pub. L. No. 108-105 needs only two simple changes. First, make it clear that the prohibition does not apply to any procedure that is performed before the fetus is viable. Second, include an exception so that the prohibition doesn't apply when it is necessary to protect the health of the pregnant woman. Both provisions are easy to write. Both come directly out of the Stenberg opinion, in which the Supreme Court struck down Nebraska's partial-birth abortion law because it failed to include these two provisions. And both would probably have increased support for the bill in Congress.

The absence of these two simple features suggests a number of possibilities:

• Maybe Congress and the Administration were more interested in a confrontation with the federal courts over partial-birth abortion than they were in enacting any meaningful legislation.


• Or perhaps Congress and the Administration were more interested in creating a campaign issue for the summer and fall of 2004 than they were in banning a procedure that is so rarely used but has such potent political symbolism.


• Finally, it is possible that the Administration and both houses of Congress truly believe that if this loose thread can be successfully pulled away from the body politic, the entire fabric of Roe v. Wade will surely follow.