ABORTION BAN ACT --
MISCONCEPTIONS AND REALITIES
By Douglas Johnson
National Right to Life Committee (NRLC)
November 5, 2003
For the latest updates on the partial-birth abortion issue,
keep an eye on
WASHINGTON, D.C. -- When President Bush signed the Partial-Birth Abortion Ban
Act (S. 3) into law on November 5, 2003, pro-lifers saw the culmination of an
eight-year struggle led by the National Right to Life Committee (NRLC) and
congressional pro-life leaders
The bill represents the first direct national restriction on any method of
abortion since the Supreme Court legalized abortion on demand in 1973.
A Gallup-CNN-USA Today poll conducted in late October found that among "young
adults" (age 18-29), the ban is favored 77-19%, while among the older groups,
support was 68-25%. A Gallup poll conducted last January, which specified that
the method is "conducted in the last six months of pregnancy," and has a
life-of-mother exception, found 70% for a ban.
Past polls of obstetrician-gynecologists and registered nurses found strong
majorities of both groups in favor of making partial-birth abortion illegal
WHAT THE BILL DOES
The bill bans "partial-birth abortion," and it legally defines a partial-birth
abortion as any abortion in which the baby is delivered "past the
[baby's] navel . . .
outside the body of the mother," OR "in the case of head-first presentation, the
entire fetal head is outside the body of the mother," BEFORE being killed. The
complete official text of the bill being signed by President Bush, in a
searchable format, is here:
The bill would allow the method if it was ever necessary to save a mother's
life. Such an exception has been part of the legislation since it was first
introduced in 1995. Nevertheless, it is still not uncommon to see news reports
that the bill would "never" allow the procedure, or to say flat out that it does
not contain an exception to save a mother's life. CBS Evening News, for
example, has made this error repeatedly over the years. An October 21, 2003,
CBS Evening News report suggested twice that the bill would "never" allow a
"late-term abortion," a compound fallacy.
THE TERM "PARTIAL-BIRTH ABORTION"
"Partial-birth abortion" is a legal term of art, defined by Congress as a matter
of federal law, as quoted above.
Although supporters and opponents of the new law differ dramatically in their
perceptions of what methods the law covers (as discussed below), neither side
believes that the legal definition of "partial-birth abortion" is synonymous
with the shifting and conflicting descriptions attached in various literature to
such pseudo-medical jargon terms as "dilation and extraction," "intact dilation
and evacuation," or "intact dilation and extraction."
In short, it is simply inaccurate for journalists to equate the legal term
"partial-birth abortion" with these nebulous jargon terms.
Sometimes reporters say that "doctors call the procedure . . .," followed by
one of the three conflicting jargon terms listed above. But many doctors --
probably, most doctors -- actually call it "partial-birth abortion." The term
"partial-birth abortion" has been recognized and used by many eminent medical
authorities for years, including former Surgeon General C. Everett Koop, and
hundreds of prominent obstetricians and gynecologists who have expressed support
for the bill.
The Merriam-Webster Medical Dictionary, utilized by major medical websites such
as those sponsored by the National Institutes of Health,
the National Library of Medicine, and Harvard Medical School, lists a definition for "partial-birth abortion," but not the
pseudo-medical jargon terms coined by abortion providers and used by many
opponents of the bill. Check it out:
In short, besides
being a legal term of art, "partial-birth abortion" is as much a "medical term"
as "heart attack" (which both journalists and others usually use in preference
to "myocardial infarction").
Another thing that both sides agree on is that it is inaccurate to report, as
CBS Evening News has done repeatedly, that the bill is a "late-term abortion
ban." It is a ban not of "late-term abortion" but of a defined method -- and
the legal definition of that method has never referred to a point in "term," but
rather, to the location of the living baby when he or she is killed. (See "Is
It Misleading to Call it Partial 'Birth'?," below.)
In reality, partial-birth abortion cannot be performed in the first three
months, and most are performed in the fifth and sixth months. So, then, are
partial-birth abortions "late-term" abortions? The question is impossible to
answer, because the label "late-term" has no standard legal or medical meaning,
and is used in wildly different ways. Pro-abortion groups exploit this
ambiguity -- they use the label "late-term" as code for "third-trimester,"
meaning the seventh month and later -- a period that begins roughly three weeks
AFTER babies typically attain the lung development sufficient to survive
indefinitely outside the womb (so-called "viability").
When journalists describe the bill as a "ban on late-term abortions" or "certain
late-term abortions," they introduce an element of ambiguity or outright
distortion into everything else they say about the matter, because many readers
may understand the label as referring to third-trimester abortions, while many
others will regard abortions in the fifth and sixth months as "late-term
medical illustrations used this year during the House and Senate floor
debates, which accurately depict a typical partial-birth abortion of a baby at
24 weeks (five and one-half months). Here is a proposed experiment for
journalists: Show one of these illustrations to the first 10 people you meet on
the street, explain that it shows "an abortion," and ask if they think it looks
like a "late-term" abortion. We predict that most will reply in the
affirmative. Yet, what the illustration shows is not, in the usage of NARAL and
Planned Parenthood, a "late-term" (third-trimester) abortion. The term "third
trimester" is used to refer to points as early as the start of the 25th week and
as late as the start of the 27th week.
IS IT MISLEADING TO CALL IT A PARTIAL "BIRTH"?
Since 1995, NRLC has stressed that most partial-birth abortions are performed in
the fifth and sixth months
(although some have been performed later, and not always in
cases of serious physical disorder of mother or baby). See NRLC's first media
factsheet on the issue, dated June 21, 1995:
Some critics of the bill argue that the term "partial-birth" is misleading
because, they insist, it connotes that the typical partial-birth abortion is
performed near or at full term (40 weeks, or nine months). For example, Will
Saletan asserts in an essay in Slate ("The 'Partial-Birth' Myth," Oct. 22, 2003)
that the name is misleading because "this procedure doesn't take place anywhere
near the appointed hour of birth."
"The appointed hour of birth" is neither a "medical term" NOR a legal term of
art. The objection is based on the premise that "birth" occurs only at or near
full term -- or, in some variants, that "birth" occurs only after "viability."
(Viability begins soon after the start of the sixth month.) But this premise is
profoundly erroneous, in either form.
In federal (and most state) law, a "live BIRTH" occurs when the baby is (1) all
the way outside the mother, even if the cord is still attached, and (2) displays
any respiration, heartbeat, or movement of voluntary muscles. See the federal
Born-Alive Infants Protection law enacted in 2002:
Most partial-birth abortions are performed in the fifth and sixth months of
pregnancy. Even early in the fifth month, babies who are expelled by premature
labor will often be born alive. At that stage the baby's lungs are too
undeveloped to permit sustained survival, but if the baby draws breath it is a
Medically and certainly legally, "live BIRTH" is an entirely different concept
from "viability" (which relates mainly to lung development and the capacity for
sustained respiration). The "live birth period" begins long before
"viability." Even under the doctrine of Roe v. Wade, once outside the mother, a
human who shows any signs of life is a "person" protected by law and the
Constitution, whether he or she lives for five minutes or 100 years.
By 20 weeks (halfway through the fifth month), the LIVE BORN baby may breathe
for an hour or so before dying. By 23 weeks (just into the sixth month),
ONE-THIRD survive long term -- but you will never find out whether a given baby would have
been part of the one-third, after her skull is punctured and brain removed in a
By 24 weeks (about halfway through the sixth month), more than HALF are
Thus, at the stages that most partial-birth abortions are performed, the great
majority of babies would be "live births" if they were expelled by spontaneous
premature labor, and many would be long-term survivors.
In other words, in a partial-birth abortion, a premature human is deliberately pulled to
within just a few inches of being, medically and legally, a LIVE BIRTH -- so
this method is indeed a PARTIAL LIVE BIRTH -- or 'partial-birth,' for short.
President Bush spoke the painful, literal, legal truth on November 5, 2003, when
he said, "For years, a terrible form of violence has been directed against
children who are inches from birth..."
Legally, there is NO SUCH THING as a "fetus" who is all the way outside the
mother and alive. Under federal law (and most state law), even if
pre-viable, this is a pre-mature "infant," and also a "person," a "human being,"
and a "child."
HOW MANY PARTIAL-BIRTH ABORTIONS ARE THERE?
Figures from abortion-industry groups have ranged from 2,200 for the year 2000
(from The Alan Guttmacher Institute [AGI], which is affiliated with the Planned
Parenthood Federation of America [PPFA], a major abortion provider) to
3,000-5,000 (in 1997, by Ron Fitzsimmons, the executive director of the National
Coalition of Abortion Providers, although each of these figures was based on
definitions somewhat different from that contained in the Partial-Birth Abortion
The AGI figure is clearly a bare minimum. Responses to AGI's periodic surveys
are purely voluntary. It is hard to understand why any abortionist would report
that he was performing such abortions if he was not, but easy to imagine that
many would throw the survey in the wastebasket. (An earlier AGI survey, using
the same methodology, claimed that only 650 such abortions were performed in
1996 -- an absurd claim, but nevertheless was accepted as authoritative by The
New York Times and other news media for years. It appears that AGI is now
trying to "forget" that it ever made this claim -- see the exchange of letters
in the Washington Times here:
THE NEW LAW AND THE SUPREME COURT
In the case of Stenberg v. Carhart in 2000, by a 5-4 vote, the Supreme Court
struck down a Nebraska law banning partial-birth abortions, holding that Roe v.
Wade guarantees the right of an abortionist to use the method whenever he thinks
it is preferable to other methods. The five-justice majority opinion, written
by Justice Stephen Breyer, took pains to clarify that it did NOT intend to limit
this doctrine to cases in which there was a pre-existing maternal or fetal
health problem, but to ANY case in which a woman sought an abortion from Dr.
Carhart in the second trimester.
Congress has now invited the five-justice majority to re-examine that extreme
and inhumane decision. The new bill contains extensive congressional findings,
based on years of congressional staff investigations and hearings, that
partial-birth abortion is unnecessary to preserve "health," and indeed poses
intrinsic risks even over and above other abortion methods. In addition, the
definition of "partial-birth abortion" is more detailed and explicit than the
definition found in the Nebraska law that the five justices struck down in 2000.
As noted, the "health" issue is addressed in the bill itself, in lengthy
congressional findings. Beyond that, many of the claims of medical "necessity"
for partial-birth abortion, on closer examination, turn out to involve not any
bona fide risk to a mother's physical health, but rather, a diagnosis that the
baby has Down syndrome or some other disorder that cannot be cured. The word
"health," in most of these cases, is really a euphemism for pre-natal
euthanasia. For further discussion, see
Some of the women who have figured most prominently in attacks on the bill, such
as Viki Wilson of California, clearly did not have abortions that would be
covered by the bill -- even under the interpretation, which is erroneous, that
the bill covers dismemberment procedures (D&E).
HISTORY OF THE LEGISLATION
The Partial-Birth Abortion Ban Act was introduced by Congressman Charles Canady
(R-Fl.) on June 14, 1995. The bill was developed in collaboration with
NRLC. The current chief sponsors are Senator Rick Santorum (R-Pa.) and
Congressman Steve Chabot (R-Ohio).
The House first passed the bill on November 1, 1995, 288-139. The Senate first
passed the bill on December 7, 1995, 54-44. In the 104th and 105th congresses,
Congress approved the ban but President Clinton vetoed the bills; in both of
those congresses, the House overrode but the Senate sustained. In the 106th
Congress, both the House and Senate passed similar bills, but no final bill was
approved. In the 107th Congress (2002), the House passed the ban, but the
Senate Democratic leadership blocked it from coming to the Senate floor. This
year, the bill won final
approval in the House
approval in the House on October 2, 281-142, and
in the Senate on October 21, 64-34.
TURNING POINTS IN THE DEBATE
The debate over partial-birth abortion began in 1992 with the circulation of an
instruction paper written by Ohio abortionist Martin Haskell, explaining how to
perform the procedure. The paper is posted
In the ensuing years, there have been several key turning points in the debate,
which are documented in
the NRLC chronological archive on partial-birth abortion, here:
The turning points include:
-- the eyewitness account of Brenda Pratt Shafer, a nurse who was "very strongly
pro-choice" until she witnessed a partial-birth abortion close up.
-- emphatic repudiation by the two major societies of anesthesiologists of the
claim -- disseminated by major pro-abortion groups and accepted as fact by major
journalists -- that anesthesia given to the mother causes painless death of the
unborn child before a partial-birth abortion is performed. In congressional
testimony, medical experts testified that by the late second trimester, the
unborn child is very responsive to painful stimuli, and that this is not much
affected by anesthesia given only to the mother.
-- the unraveling of the manufactured claim that partial-birth abortions are
performed only hundreds of times a year and only, or nearly only, in medically
acute circumstances. This claim had been energetically promulgated by NARAL,
the Planned Parenthood Federation of America, the National Abortion Federation,
and other major pro-abortion groups -- often in the same press releases and
factsheets that complained that the bill applied to abortions performed before
"viability." But the disinformation campaign collapsed between September 1996
and February 1997, due to investigations by various journalists -- including
American Medical News, the Washington
Post, Bergen Record, and
-- the decision, in February 1997, by Ron Fitzsimmons -- then and now the
executive director of the National Coalition of Abortion Providers -- to
repudiate what he called "the party line." Fitzsimmons estimated that the method
was used 3,000-5,000 times annually, and "in the vast majority of cases" on "a
healthy mother with a healthy fetus that is 20 weeks or more along" (New York
Times, Feb. 26, 1997). Subsequently, other spokespersons for major abortion
providers publicly defended Fitzsimmons and affirmed the accuracy of his
The June 2000 U.S. Supreme Court
ruling in Stenberg v. Carhart (discussed above).
REVIVAL OF DISCREDITED MYTHS
In the wake of the revelations described above, the Senate Judiciary Committee
and the House Judiciary Constitution Subcommittee held an unusual joint hearing
March 11, 1997,
at which NRLC presented testimony that documented in detail the disinformation
campaign that had been waged against the bill.
What new evidence has come to light since 1997 only reinforces the conclusion
that some practitioners use the method routinely during the fifth and sixth
months of pregnancy, and even later, and that the vast majority of partial-birth
abortions do not involve any acute medical circumstances. For example,
became the only state to enact a law that requires reporting of partial-birth
abortions separately from other abortion methods. The first full year the
law was in effect (1999), Kansas abortionists reported that they performed 182
partial-birth abortions on babies who were defined by the abortionists
themselves as "viable," and they also reported that all 182 of these were
performed for "mental" (as opposed to "physical") health reasons.
See the compilation
Nevertheless, in recent months, NRLC has witnessed attempts to revive erroneous
claims about partial-birth abortion that were thoroughly discredited in 1996 and
1997. Articles and broadcasts in major media outlets, including the Boston
Globe and the Wall Street Journal, have adopted the premise the partial-birth
abortions are nearly always performed to deal with serious physical disorders of
mother and/or baby.
In January 1997, the PBS documentary program MEDIA MATTERS devoted a major
segment to an examination of how much of the news media had uncritically adopted
as fact assertions that were highly disputed from the beginning, and that were
disproved when belatedly subjected to journalistic scrutiny. The transcript is
One of the journalists interviewed in the MEDIA MATTERS program was Washington
Post medical writer David Brown, M.D. After interviewing numerous abortionists,
Dr. Brown wrote, "[I]n most cases where the procedure is used, the physical
health of the woman whose pregnancy is being terminated is not in jeopardy." He
also said, "Most people who got this procedure were really not very different
from most people who got abortions."
After all that, can the pro-abortion advocacy groups revive the myth? It looks
like they're trying. The Planned Parenthood Federation of America (PPFA),
September 17, 2003
press release, asserted that the bill would "outlaw a medical procedure used
primarily in emergency abortions."
If they fool you twice, shame on you.
SUPREME COURT -- DIVIDED 6-3 ON ROE V. WADE (LEGAL ABORTION FOR ANY REASON),
BUT 5-4 ON PARTIAL-BIRTH ABORTION
It has been erroneously reported in recent months by Gannett News Service that
the current Supreme Court is divided 5-to-4 on legal abortion. In reality, six
current Supreme Court justices have clearly expressed support for legal abortion
for any reason to "viability," and for "health" even after that. For an
explanation of what the term "health" means in the context of abortion law, by
Washington Post medical writer Dr. David Brown, here: http://www.nrlc.org/abortion/pba/roevwademyths.html
However, the 2000 ruling that struck down Nebraska's ban on the partial-birth
abortion method was a 5-4 ruling, since Justice Kennedy -- a supporter of Roe --
voted to uphold the Nebraska ban on the partial-birth abortion method.
Another misconception: Gannett New Service and some others also continue to
misreport that the Supreme Court allows greater restrictions on abortion after
the first three months. The Supreme Court majority explicitly repudiated any
such "trimester" distinction in the 1992 Casey ruling. For further discussion
of these two misconceptions about the Supreme Court, see:
ILLUSTRATIONS, CERTIFIED MEDICALLY ACCURATE,
OF PARTIAL-BIRTH ABORTION AND "D&E" ABORTION METHODS
In legal documents filed in federal court in Nebraska on October 31, several
abortionist argue (through the attorneys of the Center for Reproductive Rights)
that the Partial-Birth Abortion Ban Act does not distinguish between
dismemberment procedures ("dilation and evacuation") that involve dismemberment
of the baby inside the woman's body, and the "extraction" (partial-birth)
procedures in which the baby is killed after being partly delivered outside the
woman's body. They insist that the definition in the bill could apply to the
dismemberment procedures, because they say are not sure what the words "living
fetus" mean, and because fetuses take some time to die in the womb even after
their arms or legs have been torn off.
The lawmakers who crafted the bill dispute that it covers such inside-the-body
killing procedures. In order for readers or viewers to evaluate these
conflicting claims, it certainly is important for them to be provided with the
actual DEFINITION of "partial-birth abortion" from the bill. But since
radically different interpretations are being placed on that definition, in
order to really understand what the argument is about, readers or viewers need
to SEE illustrations -- certified by medical authorities as entirely accurate --
of the two different abortion methods that are under discussion.
With respect to partial-birth abortion, the color illustrations displayed
repeatedly on the floor of the U.S. Senate and the U.S. House are posted and
We have the rights to use these illustrations and we have placed them in the
public domain for non-commercial use. No further permissions are required to
legitimate news media to reproduce any or all of them for non-commercial
purposes, as long as none of the images are altered (other than enlargement or
reduction in overall size).
At the bottom of the same website page, you will find letters from medical
authorities (including the eminent Professor Watson Bowes, co-editor of the
Obstetrical and Gynecological Survey, a leading journal), certifying that these
drawings accurately depict a partial-birth abortion (as defined in the bill) at
24 weeks, which is about 5-1/2 months. Most partial-birth abortions are
performed in the 18 to 26 week range, so this depicts such an abortion in the
typical time period when they are performed.
With respect to the second method, the "dilation and evacuation" or "D&E"
method, which some pro-abortion groups insist is also covered by the bill, the medical
illustration firm Nucleus Medical Art offers a standard textbook illustration,
which we have purchased a license to display on our website. It depicts an
unborn child being dismembered at 23 weeks.
WHAT DO MOST DOCTORS AND NURSES SAY?
In a very unbalanced article in that appeared in the Boston Globe on October 28,
reporter Carol Cruzan Morton noted that the bill contains congressional findings
that the banned method is "risky and medically unjustified," but she immediately
asserted, in the Globe's own voice, that these are "claims that most doctors
dispute." No poll of doctors or other authority was cited to support this
assertion, nor has any been provided by the Globe in response to subsequent
The only poll of physicians on the subject we have seen was conducted by Medical
Economics and published in October, 2002, asking the question, "Should the
procedure that's often called 'partial-birth abortion' remain legal?" Among all
physicians, only 27% were for keeping the method legal, while 44% said it should
not be legal (a plurality), and 28% weren't sure. Among the obstretrician-gynecologists,
however, there was a clear majority of 57% for the ban, and only 33% for keeping
the method legal. Medical Economics Senior Editor Dorothy L. Pennachio wrote
that among various medical specialties, "Ob/gyns are least likely to be on the
fence -- only 10 percent say they're not sure; they're also most likely (57
percent) to believe the procedure should be outlawed." See:
A 1999 random sample of 2,000 hospital-based registered nurses by RN magazine
found that 63% favored a ban on partial-birth abortion.
MORE COMPLAINTS ABOUT TERMINOLOGY BY CRITICS OF THE BILL
Some opponents of the bill have recently objected to some terms used by
supporters, including "premature infant," "child," "kill," and "abortionist."
However, each of these terms has been acknowledged and used as well by
practitioners of partial-birth abortion and their defenders.
"Premature infant" is accurate. As explained above, the method is usually used
in the fifth and sixth months (sometimes later). Even at the start of the fifth
month, if a woman goes into spontaneous labor, her baby often will be a live
birth. Babies born starting just after the start of the sixth month now very
often survive indefinitely. The usage occasionally seen in the news media, "a
fetus who survived an abortion," is a medical and legal oxymoron. A member of
the species Homo sapiens who has been entirely expelled from the mother and who
is alive is a premature "infant" -- and, under federal law, an "child" and a
As to "child," even the inventor of the partial-birth abortion method, the late
physician James McMahon, told American Medical News, "After 20 weeks
months] where it frankly is a child to me, I really agonize over it. ... On the
other hand, I have another position, which I think is superior in the hierarchy
of questions, and that is: 'Who owns the child?' It's got to be the mother."
The article is here:
There are numerous examples of pro-abortion advocates acknowledging what should
be obvious: Abortion "kills" a developing human. For example, Faye Wattleton,
former president of Planned Parenthood, said in 1997, "I think we have deluded
ourselves into believing that people don't know that abortion is
killing." Regarding partial-birth abortion specifically, the executive director
of the National Coalition of Abortion Providers, Ron Fitzsimmons, told The New
York Times, "It is a form of killing. You're ending a life."
As to the term "abortionist": At the very first congressional hearing on the
Partial-Birth Abortion Ban Act on June 15, 1995, Dr. J. Courtland Robinson,
professor of ob-gyn at Johns Hopkins, testifying on behalf of the National
Abortion Federation against the Partial-Birth Abortion Ban Act, repeatedly
identified himself as an "abortionist," and even as a "Christian abortionist."
[Hearing Record, 104th Congress, First Session,
June 15, 1995,
Serial No. 31, at pages 86-87.] If the term was good enough for the lead
witness for the National Abortion Federation, it is good enough for us.
WHAT IS NEXT?
At an October 28 press conference, President Bush was asked, "Do you believe
that the climate has changed since the last campaign and all abortions should be
banned?" The President's accurate answer, and NRLC's comment on his answer, are
The U.S. House of Representatives passed, in the last Congress, four major
pro-life bills other than the Partial-Birth Abortion Ban Act, all of which died
without action in the U.S. Senate, which was then under Democratic control.
NRLC hopes that the U.S. Senate will take up each of these measures during the
current Congress. They are:
-- The next major pro-life bill likely to come up in the Senate is the Unborn
Victims of Violence Act (S. 1019, H.R. 1997), also known as "Laci and Conner's
Law." This is a bill to recognize an unborn child as a victim when he or she is
injured or killed during the commission of a federal crime of violence. NRLC
believes that such crimes have two victims.
-- The Child Custody Protection Act (S. 851, H.R. 1755) would make it a federal
offense to take a minor across state lines to obtain an abortion, if this
abridges the right of a parent, under the home-state law, to be involved in her
-- The Abortion Non-Discrimination Act (S. 1397) would prohibit state or local
government officials from using government power to compel health care providers
to participate in abortion.
-- The Human Cloning Prohibition Act (S. 245, H.R. 534) would prohibit the creation
of cloned human embryos. The House passed this legislation in the current
February 27, 241-155.
NRLC Legislative Director Douglas Johnson debated Center for Reproductive Rights
President Nancy Northup regarding the Partial-Birth Abortion Ban Act on National
Public Radio's "Diane Rehm Show," October 29, 2003 (requires RealPlayer):
Johnson debated Planned Parenthood Federation of America (PPFA) President Gloria
Feldt on June 10, 2003, on the Public Radio International program "To The
FOR FURTHER INFORMATION
For further information on partial-birth abortion, or to arrange interviews or
broadcast debates, call (202) 626-8820 or send e-mail to
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