Habit and Discernment in Abortion Practice: The Partial-Birth Abortion Ban Act of 2003 as Morals Legislation

As conceived by Congress, the Partial-Birth Abortion of 2003 is morals legislation. It is designed not to prevent tangible harm directly, but rather prevent harm indirectly by safeguarding public morality. This Article analyzes the morals rationale for the Act, and in so doing it illustrates an approach to the analysis of morals legislation that potentially is of broader application. The approach draws on William James, who recognized both that habit is what prevents wrongdoing and that broad habits are more reliable than narrow ones[1]. Starting from these insights, it is possible to argue that a ban on so-called partial-birth abortion is justified for the sake of cultivating in physicians a broad habit of respect for persons. But this argument ultimately founders on an another insight from James, namely that professional training may “give to small amounts of objective difference the same effectiveness upon the mind that, under other circumstances, only large ones would have”[2]. Though the layperson may well perceive, to use Congress’s words, a “disturbing similarity”[3] between a partly delivered nonviable fetus and a newborn infant, the experienced physician need not. There is no good reason to suppose, then, that killing the fetus in these circumstances will weaken the physician’s habit of respect for persons.