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Recent Developments on Partial-Birth Abortion
Responding to
President Bush’s call to ban “abhorrent procedure,” Congress takes up
Partial-Birth Abortion Ban Act
[For further
information, contact Douglas Johnson, legislative director at the National
Right to Life Committee (NRLC), at Legfederal@aol.com
or 202-626-8820. Extensive
documentation on this subject is posted in the Partial-Birth Abortion
section of the NRLC website at www.nrlc.org/abortion/pba/index.html
]
The Partial-Birth Abortion Ban Act has been
introduced in the U.S. House of Representatives by Congressman Steve Chabot
(R-Oh.), chairman of the House Judiciary Subcommittee on the Constitution,
as H.R. 760, which currently has
150 sponsors and cosponsors. The
same bill has been introduced in the Senate by Senator Rick Santorum
(R-Pa.), chairman of the Senate Republican Conference, as S.
3, which currently has 44 sponsors and cosponsors.
Senate
Republican leaders listed the bill as one of their “Top Ten”priority
measures, and the Senate may take up the bill as early as the week of March
10.
In January 22 remarks to the March for Life,
President Bush said, “My hope is
that the United States Congress will pass a bill this year banning
partial-birth abortion, which I will sign.
Partial-birth abortion is an abhorrent procedure that offends human
dignity.” The President
also urged Congress to act on the bill in his January 28 State of the Union
speech.
The January 2003 Gallup poll found that 70%
favored and 25% opposed “a law that would make it illegal to perform a
specific abortion procedure conducted in the last six months of pregnancy
known as ‘partial birth abortion,’ except in cases necessary to save the
life of the mother.” (margin of error +/- 3%)
The bill is the same text as that which was passed by
the House of Representatives on July 24, 2002, by a lopsided bipartisan vote
of 274-151. But the Democratic
Senate leadership, at that time holding majority control, refused to allow
that bill to come up for a vote during 2002.
However, Democratic leader Daschle
told his constituents he continued to support the bill:
“Jay Carson, Daschle’s press secretary, said the majority leader
supports banning the procedure, but is not sure if there is room on the
Senate’s schedule.” Sioux
Falls Argus-Leader, July 26, 2002.
In earlier years, Congress approved national bans on
partial-birth abortion twice, but they were vetoed by President Clinton.
On each occasion, the House voted to override the vetoes, but
supporters fell short of the necessary two-thirds majority in the Senate.
[Sept. 26, 1996, and Sept. 18, 1998]
More recently, when the Senate last dealt with the partial-birth
abortion issue, on October 21, 1999, 63 senators voted to pass the ban, and
two additional senators who supported it were absent, for a total of 65.
However, votes on gutting
amendments have been and will be much closer than those final tallies would
suggest. What is a
partial-birth abortion?
Supreme Court Justice Clarence Thomas accurately
described the partial-birth abortion method in his dissent in Stenberg
v. Carhart (2000): “After
dilating the cervix, the physician will grab the fetus by its feet and pull
the fetal body out of the uterus into the vaginal cavity.
At this stage of development, the head is the largest part of the
body. . . . the head will be held inside the uterus by the woman’s cervix.
While the fetus is stuck in this position, dangling partly out of the
woman’s body, and just a few inches from a completed birth, the physician
uses an instrument such as a pair of scissors to tear or perforate the
skull. The physician will then
either crush the skull or will use a vacuum to remove the brain and other
intracranial contents from the fetal skull, collapse the fetus’ head, and
pull the fetus from the uterus.”
An eight-page instruction paper on how to perform
this type of abortion, written by an abortionist in 1992, in a sense began
the national debate about partial-birth abortion.
It is posted on a congressional website: www.house.gov/burton/RSC/haskellinstructional.pdf.
Most
partial-birth abortions are performed in the fifth and sixth months of
pregnancy (20-26 weeks). At
this stage, an infant who is spontaneously prematurely delivered is usually born
alive. There is abundant medical evidence that a human baby at this
stage is extremely sensitive to pain – whether she is inside the womb,
fully born, or halfway between.
Some partial-birth abortions are performed in the
seventh month and later – and not only in cases of fetal disorders or
maternal distress. It
is noteworthy that in Kansas, the only state in which the law requires
separate reporting of partial-birth abortions, abortionists reported in 1999
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: www.kdhe.state.ks.us/hci/99itop1.pdf
(on page 11).
Five justices
said Roe v. Wade covers
partial-birth abortions
In June 2000, the U.S. Supreme Court, in a 5-4 ruling
in Stenberg v. Carhart, struck
down a Nebraska law that was similar to the federal ban that was under
consideration in Congress at that time, citing Roe v. Wade. In
response to the Stenberg v. Carhart
ruling, the new federal bill differs in two significant respects from the
bans approved by the 104th Congress and 105th Congress
(which were vetoed by President Clinton).
The five-justice majority in Carhart thought that Nebraska’s definition of “partial-birth
abortion” was vague and could be construed to cover not only abortions in
which the baby is mostly delivered alive before being killed, but also the
more common second-trimester “dilation and evacuation” (D&E) method.
In a “D&E,” a well-developed unborn child is dismembered
piece by piece. (For a better
understanding, see the Nucleus Medical Art image at www.nrlc.org/abortion/pba/DEabortiongraphic.html
)
During a D&E, an arm or leg is sometimes pulled
into the birth canal before being twisted off, while the baby is still alive
in the womb, so the justices thought this might be considered a
“partial-birth abortion” under the Nebraska definition.
(Even after one or more limbs are twisted off, it takes a little
while for the baby to bleed to death, or to be killed by the final stage,
the crushing of her skull.)
In order to avoid any possibility of such confusion,
the new bill defines a prohibited partial-birth abortion as one in which
“the person performing the abortion deliberately and intentionally
vaginally delivers a living fetus until, in the case of a head-first
presentation, the entire fetal head is
outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the
mother,” and then kills the baby.
[italics added for emphasis] Some
pro-abortion groups continue to assert that this definition covers abortion
methods other than that depicted. (For
example, in a letter published in the February 23, 2003 issue of The
New York Times, the chief executive of Planned Parenthood of New York
City wrote that the bill “as written would outlaw some of the safest and
most common methods of abortion used throughout a woman’s pregnancy, as
early as 10 weeks in some cases.”) But
they have not explained how. It
appears that such advocates are counting on journalists not to demand
details on how the actual language of S.3/H.R. 760 could possibly be applied
to any first-trimester abortions, or to second-trimester or third-trimester
dismemberment procedures.
In Stenberg,
the five-justice majority also ruled that an abortionist must be allowed to
use the partial-birth abortion method if he believes that it is the method
which has the lowest risk of side effects for any particular woman seeking
an abortion in the late second trimester (not only women with a “health”
problem). The majority reached
this result by deferring to findings of fact by the trial court, which were
based on acceptance of assertions by late-term abortionist Dr. LeRoy Carhart
and others that the partial-birth abortion method was sometimes the method
least likely to cause side effects.
The new federal bill addresses this issue by
incorporating congressional findings that partial-birth abortion is never
necessary to protect the health of a woman and, indeed, exposes a woman to
substantial and additional health risks.
The bill concludes that, based on the extensive congressional hearing
record on partial-birth abortion, “Congress finds that partial-birth
abortion is never medically indicated to preserve the health of the mother;
is in fact unrecognized as a valid abortion procedure by the mainstream
medical community; poses additional health risks to the mother; blurs the
line between abortion and infanticide in the killing of a partially-born
child just inches from birth; and confuses the role of the physician in
childbirth and should, therefore, be banned.”
Pro-abortion
disinformation persists, although discredited
When legislation dealing with partial-birth abortion
was first introduced in Congress in 1995, major pro-abortion groups insisted
that the method was used very rarely, only a few hundred times a year, and
only in cases involving acute medical crises.
There was always ample documentation to the contrary; these claims
were political concoctions, dictated by polling data, not facts (see, for
example, the leaked memo by Democratic pollster Celinda Lake, “Positioning
on so-called ‘partial birth’ abortion,” September 16, 1996, here: http://www.nrlc.org/abortion/pba/lakememopba.pdf
)
Nevertheless, these assertions were accepted and
repeated incessantly as fact by many major organs of the media until at
least late 1996, when several newspapers published reports based on
interviews with various abortionists who acknowledged that the method was
employed frequently and mostly for purely elective abortions.
The pro-abortion disinformation campaign suffered
another blow in February 1997, when Ron Fitzsimmons, then and now the
executive director of the National Coalition of Abortion Providers (NCAP),
admitted that he and leaders of other pro-abortion groups knew better when
they claimed that the partial-birth method was used rarely and only in
extraordinary circumstances. Fitzsimmons
said this was merely a “party line” adopted by the major pro-abortion
advocacy groups. Regarding his
own (albeit minor) role in disseminating this “party line,” he said,
“[I] lied through my teeth.” The New York Times reported (Feb. 26, 1997, p. A11), “In
the vast majority of cases, the procedure is performed on a healthy mother
with a healthy fetus that is 20 weeks or more along, Fitzsimmons said.”
(20 weeks is the halfway point in pregnancy – 4½ months in
layperson’s terms.) (See this
and related clippings at www.nrlc.org/abortion/pba/index.html,
in the late 1996 and early 1997 archive.)
On March 4, 2003, Fitzsimmons (still head of the NCAP)
confirmed that he believes that the statements quoted in that New
York Times story are still accurate today.
A great deal of other evidence – collected by
congressional committees, journalists, and other entities both before and
since 1997 – supports Fitzsimmons’ statements.
In January 2003, even the Alan Guttmacher Institute – an affiliate
of Planned Parenthood – published a survey of abortion providers that
estimated that 2,200 abortions by the method were performed in the year
2000. While that figure is
surely low for reasons discussed by NRLC elsewhere (www.nrlc.org/press_releases_new/release011503.html),
it is more than triple the number
that AGI estimated in its most recent previous survey (for 1996).
Despite all of
that and more, some journalists and some advocates continue to disseminate
the old, discredited misinformation. To
cite just one example: “A
so-called partial-birth abortion is defined generally as a late-term
procedure in which the fetus is aborted after it is partially outside the
mother's body. It is usually
performed in cases when the mother’s life is threatened or the fetus is
deformed.” (From
“Anti-abortion lobby counting on victories in 108th Congress,” by Pam
Brogan, Gannett News Service, December 17, 2002.)
Gannett has failed to provide any evidence to support its assertion
that partial-birth abortion (by any name) “is usually performed in cases
when the mother’s life is threatened or the fetus is deformed,” but has
also failed to inform its client papers of its error.
A recently published NRLC monograph, “Revival of
Some Old Myths on Roe v. Wade and
Partial-Birth Abortion,” critiques some other “media myths” about
partial-birth abortion and about Supreme Court decisions that bear on the
subject, including Roe v. Wade. You can read or download it from www.nrlc.org/abortion/pba/roevwademyths.html. Pro-Abortion
Substitute Amendments (Phony Bans)
Many lawmakers who oppose the Partial-Birth Abortion
Ban Act tell their constituents that they instead favor a bill to ban
“late-term” abortions with a “health” exception. These competing proposals are complete shams – hollow bills
concocted to provide political cover for lawmakers who wish to keep perfect
ratings in pro-abortion “scorecards” while hoodwinking their
constituents into believing that they oppose partial-birth abortions.
The leading House advocates of phony-ban legislation
(H.R. 809), Reps. Steny Hoyer (D-Md.) and Jim Greenwood (R-Pa.), have
admitted that this so-called “ban” actually would allow third-trimester abortions even for “mental health.”
(See their letter posted at www.nrlc.org/abortion/pba/Phony%20ban%20on%20late-term.pdf
) Greenwood is co-chair of the
Pro-Choice Caucus, and Hoyer has solidly pro-abortion rating in NARAL
scorecards.
In the Senate, a similar “phony ban” substitute
has been offered by Senator Tom Daschle (D-SD) and, more recently, by
Senator Dick Durbin (D-Il.), who is a hard-core NARAL-allied senator.
The Durbin “phony ban” has no application before provable
“viability” of a given baby. Even
after that (i.e., in the seventh month and later), the amendment would allow
abortion to be performed on a mother to prevent any
degree of “risk” of “grievous injury to her physical health.”
Dr. Warren Hern, a leading
practitioner of very late abortions who wrote the textbook Abortion
Practice, commented on the Daschle amendment, “I say every pregnancy
carries a risk of death,” and therefore, “I will certify that any
pregnancy is a threat to a woman’s life and could cause ‘grievous
injury’ to her ‘physical health.’” (in USA
Today and Washington Times,
both May 15, 1997) In other
words, under the Daschle-Durbin amendment, any
pregnant woman would qualify for an abortion (partial-birth or
otherwise) in the seventh month and later.
Resources Additional documents on medical, legal, and legislative aspects of partial-birth abortion are posted at www.nrlc.org/abortion/pba/index.html. A good primer is the testimony NRLC presented to a joint hearing of the U.S. Senate Judiciary Committee and the U.S. House Judiciary Constitution Subcommittee in March 1997, which contains footnoted citations to some of the more thorough journalistic examinations of the issue (including interviews with partial-birth abortionists) and to primary documents: www.nrlc.org/abortion/pba/test.html.
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