Senate Passes Partial-Birth Abortion Ban 63-34; Narrowly Approves Non-Binding Pro-Roe Statement

WASHINGTON -- Opinion polls show that a large segment of the American public is ambivalent on the subject of abortion, and the U.S. Senate has shown that it is no less so.

On October 21, the Senate approved the Partial-Birth Abortion Ban Act (S. 1692) by a lopsided vote of 63-34--but only after first adopting a non-binding amendment endorsing Roe v. Wade by a vote of 51-47. (See roll call chart, page 23.)

Allowing for two absent pro-life senators, the vote on the Partial-Birth Abortion Ban Act demonstrated the highest level of support yet for that measure since it was first proposed in 1995. If all senators had voted, the tally would have been 65-35- -an increase of one pro-ban vote over last year, and only two votes short of the margin that will be needed to override President Clinton's anticipated veto.

The chief Senate sponsor of the bill is Senator Rick Santorum (R- Pa.).

The bill was originally introduced in 1995 by Congressman Charles Canady (R-Fl.). President Clinton has vetoed the bill twice (with the enthusiastic support of Vice President Al Gore), in 1996 and 1997. On each occasion, the House of Representatives has voted to override the veto, but pro-life forces have fallen short in the Senate.

Following passage of the bill, NRLC Legislative Director Douglas Johnson commented, "If these 34 senators, Clinton, and Gore get their way, thousands of babies will continue to be pulled feet- first from the womb while alive, and then brutally killed."

This year, the Senate spent most of two days debating the bill, with most of the debate following familiar lines. Supporters of the measure argued that, whatever one's views on abortion in general, the partial-birth abortion procedure is brutal and should be banned. Opponents argued that a ban would interfere with "medical judgments" and would violate "the Constitution."

Despite the extensive debate, no senator switched his position from his 1998 vote. Of the seven newly elected senators, five voted for the bill: Blanche Lincoln (D-Ar.), Peter Fitzgerald (R- Il.), Evan Bayh (D-In.), Jim Bunning (R-Ky.), and George Voinovich (R-Ohio). Two new senators voted no: Charles Schumer (D-NY) and John Edwards (D-NC).

Roe Vote

Senator Tom Harkin (D-Iowa) offered an amendment expressing "the sense of the Congress" that "Roe v. Wade was an appropriate decision and secures an important constitutional right; and such decision should not be overturned." Harkin called Roe "elegant in its simplicity and its straightforwardness."

The Harkin Amendment passed 51-47, with two senators opposed to the amendment absent.

"The Harkin Amendment has no legal effect - - it simply expressed the position of a bare majority of 51 senators, which is hardly a ringing endorsement of legal abortion on demand," said NRLC's Johnson. He predicted that the amendment would not be approved by the House, which will take up the bill early next year, and will not be part of the final version of the bill that is sent to President Clinton.

The vote on the Harkin Amendment was the first time in 16 years that the Senate voted on Roe v. Wade. On June 28, 1983, a constitutional amendment to overturn Roe, proposed by Senator Orrin Hatch (R-Utah), failed 49-50 (17 votes short of the two- thirds majority needed for a constitutional amendment).

Sixteen senators supported both the pro-Roe amendment and the Partial-Birth Abortion Ban Act.

Some of the 51 senators who on October 21 voted to endorse Roe may find that the vote returns to haunt them politically, as numerous polls indicate growing support for increased restrictions on abortion. For example, a May 1999 CNN/USA Today/Gallup poll found that 58% of the public believed that abortion should be "illegal in all circumstances" or "legal only in a few circumstances."

A July 1998 survey of American women conducted by the Princeton Survey Research Associates for the pro-abortion Center for Gender Equality found that 70% of American women favor "more restrictions" on abortion and 53% believe that abortion should be legal (at most) in cases of rape, incest, or to save the mother's life.

Phony Ban
The Senate decisively rejected, 61-38, a substitute amendment offered by Sen. Dick Durbin (D-Il.), dubbed the "phony ban" by pro- lifers.

While Durbin claimed that the amendment would severely restrict abortions after "viability," by any method, in reality it contained multiple overlapping loopholes that would have allowed abortionists to perform partial-birth abortions (or other abortions) at will, even during the final months of pregnancy.

The Durbin proposal is nearly identical to the proposal offered by Senator Tom Daschle (D-SD) in 1997, which infamous third- trimester abortionist Dr. Warren Hern said would allow him to freely perform a post-viability abortion on any pregnant woman. Nevertheless, many press accounts casually described the Durbin Amendment as a "ban" on post-viability abortions, or mischaracterized it in terms such as "a stringent alternative" (Los Angeles Times).

"Much of the press has gullibly described the Durbin bill as a ban on late-term abortions, but it is all loophole and no ban - - a purely political gimmick," Johnson said. He noted that the great majority of partial-birth abortions are performed in the fifth and sixth months of pregnancy, not in the third trimester.

Modification of Definition

An amendment offered by Senator Santorum, endorsed by NRLC, modified the definition of "partial-birth abortion" contained in the original bill.

The original bill defined "partial-birth abortion" as "an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery."

On September 24, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit struck down partial-birth bans enacted by Nebraska, Iowa, and Arkansas, which contained the same definition, because the judges said that it could be interpreted to cover commonly performed "D&E" procedures in which babies are dismembered in the second trimester. [See story in October 12 NRL News, page 15. See also the story in this issue, on page 1, regarding the October 26 ruling by the U.S. Court of Appeals for the Seventh Circuit, upholding the Illinois and Wisconsin bans on partial-birth abortions.]

Santorum's revision defines "partial-birth abortion" as an abortion in which "the person performing the abortion deliberately and intentionally vaginally delivers some portion of an intact living fetus until the fetus is partially outside the body of the mother" (not just outside of the womb), before killing the baby.

Baby Body Parts

Senator Bob Smith (R-NH) offered an amendment to require increased disclosure of transactions involving baby body parts, which failed 46-51. [See separate story and roll call, page 12.]