What Everybody Needs to Know
About the Partial-Birth Abortion Ban Act

By Douglas Johnson, NRLC Legislative Director
[email protected]

[Editor's note: On November 4, 2003, the day before President Bush signed the Partial-Birth Abortion Ban Act into law, NRLC distributed to journalists a detailed memorandum titled "The Partial-Birth Abortion Ban Act: Misconceptions and Realities," written by NRLC Legislative Director Douglas Johnson.

This memorandum presented crucial facts on many of the disputed issues concerning partial-birth abortion and the bill, with Internet links to numerous documents validating NRLC's assertions on these key points. What appears below is drawn from that memorandum, but omits many important parts, including many of the Internet links, because of space constraints.

The complete memorandum is available on the NRLC website at www.nrlc.org. For the latest updates on all aspects of the partial-birth abortion issue, watch the NRLC website section on partial-birth abortion at www.nrlc.org/abortion/pba/index.html.]

 

WASHINGTON, D.C. (November 5, 2003) - - 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.

 

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: www.nrlc.org/abortion/pba/partial_birth_abortion_Ban_act_final_language.htm.

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.

 

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: http://www.nlm.nih.gov/medlineplus/mplusdictionary.html.

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 abortions" too.

Consider the 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: http://www.nrlc.org/abortion/pba/NRLC_factsheet_PBA_June_1995.pdf.

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 Act enacted in 2002: http:// www.nrlc.org/Federal/Born_Alive_Infants/index.html.

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 live birth.

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 - - 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 partial-birth abortion. By 24 weeks (about halfway through the sixth month), more than half are long-term survivors.

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.

 

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 Ban Act.

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: http://www.nrlc.org/abortion/pba/PBAletterwashtimes110403.html.

 

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 http://www.nrlc.org/abortion/pba/JohnsonAdesinterview041096.html and http://www.nrlc.org/abortion/pba/pbafact13.html.

 

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 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 on a congressional website here: http://www.house.gov/burton/RSC/haskellinstructional.pdf.

In the ensuing years, there have been several key turning points in the debate, which are documented on the NRLC website, here: http://www.nrlc.org/abortion/pba/index.html.

The key turning points documented in that archive 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. See: http://www.nrlc.org/abortion/pba/pbacampaign.html.

 

* 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. See: http://www.nrlc.org/abortion/Fetal_Pain/index.html.

 

* 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 writers for American Medical News, the Washington Post, Bergen Record, and PBS. See: 1996-97 tier in archive at: http://www.nrlc.org/abortion/pba/index.html.

 

* 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 statements. See: 1996-97 tier in archive at: http://www.nrlc.org/abortion/pba/index.html 

* 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 on March 11, 1997, at which NRLC presented testimony that documented in detail the disinformation campaign that had been waged against the bill: http://www.nrlc.org/abortion/pba/test.html.

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, Kansas 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 pages 10-11 of the Kansas Health Department report. See page 11 of www.kdhe. state.ks.us/hci/99itop1.pdf.

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 that 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 disproven when belatedly subjected to journalistic scrutiny. The transcript is here: http://www. pbs.org/wnet/mediamatters99/transcript2.html.

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." And, he 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), in a September 17, 2003, press release, asserted that the bill would "outlaw a medical procedure used primarily in emergency abortions."

 

ILLUSTRATIONS, CERTIFIED MEDICALLY ACCURATE, OF PARTIAL-BIRTH ABORTION AND "D&E" ABORTION

In legal documents filed in federal court in Nebraska on October 31, several abortionists 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 they 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 downloaded here: http://www.nrlc.org/abortion/pba/PBA_Images/PBA_Images_Heathers_Place.htm.

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. http://www.nrlc.org/abortion/pba/DEabortiongraphic.html.

 

WHAT DO MOST AMERICANS SAY?

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.

 

WHAT DO MOST DOCTORS AND NURSES SAY?

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 obstetrician-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."

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 "person." http://www.nrlc.org/Federal/Born_Alive_Infants/index.html.

As to "child," even the inventor of the partial-birth abortion method, the late physician James McMahon, told American Medical News, "After 20 weeks [4-1/2 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: http://www.nrlc.org/abortion/pba/AmericanMedicalNews1993.pdf.

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.