CONGRESS WILL ACT SOON ON THE PARTIAL-BIRTH ABORTION BAN ACT OF 2002

On June 19, Congressman Steve Chabot (R-Oh.) introduced the Partial-Birth Abortion Ban Act of 2002 (H.R. 4965). There was a bipartisan group of initial cosponsors: James Barcia (D-Mi.), Henry Hyde (R-Il.), Ralph Hall (D-Tx.), Chris Smith (R-NJ), James Oberstar (D-Mn.), Sue Myrick (R-NC), Bart Stupak (D-Mi.), Melissa Hart (R-Pa.), Alan Mollohan (D-WV), Rob Portman (R-Oh.), and Nick Rahall (D-WV), and by NRL News deadline there were nearly 100 cosponsors. (The full text of the bill can be found on the web at http://thomas.loc.gov.)

Congress has twice approved national bans on partial-birth abortion--but neither became law, because they were successfully vetoed by Bill Clinton in 1996 and 1997. (This fact should be contemplated by those who refused to vote in the 1992 and 1996 elections or voted for third-party candidates because they deemed the Republican candidates "not pro-life enough.")

Twenty-seven states have also passed bans on partial-birth abortions. Many of these state laws were challenged in federal court. Of these challenges, the Nebraska case went to the U.S. Supreme Court, which struck down the law in the Stenberg v. Carhart decision in June 2000. Nebraska's bill to ban partial-birth abortions was similar to the bills previously passed by Congress.

The five-justice majority in Stenberg v. Carhart (1) decided that Nebraska's definition of a partial-birth abortion was broad enough to include certain dismemberment procedures ("D&Es") in its ban; (2) claimed "that significant medical authority supports the proposition that in some circumstances, [partial-birth abortion] would be the safest procedure"; and (3) concluded that the Nebraska law placed an "undue burden" on women seeking abortions because it failed to allow Dr. LeRoy Carhart, the abortionist instigating the case, to perform a partial-birth abortion whenever he believed that it was the method least likely to cause side effects during a late abortion.

(Contrary to what is often reported, the majority made it clear that Carhart must be allowed to use the method on perfectly healthy women, not merely when he believed that a woman had a " health" problem.)

The majority's conclusions relied heavily on findings of fact made by the federal district court, which in turn gave undue weight to the assertions of Carhart.

In response, Congressman Chabot's new bill contains two significant changes. First, it refines the definition of the term "partial-birth abortion," as described below. Second, it distills the results of extensive hearings on this issue during previous congresses into a set of congressional findings. Unlike the findings of the federal district court, these findings are based on a much more balanced and broader range of expert testimonies. The congressional hearings, as summarized in the bill's findings, support conclusions opposite to the district court's.

While the Supreme Court generally will accept findings of fact of a lower court unless appellate review has determined them to be "clearly erroneous," the U.S. Congress is not bound by the faulty and inadequate fact finding of a court. Moreover, it is equally well settled in the law that the Supreme Court must accord great deference to congressional findings of fact. Thus, aside from the tightened definition of what is a partial-birth abortion, the extensive set of congressional findings is an important part of the new bill.

This is the definition used by H.R. 4965:

[T]he term "partial-birth abortion" means an abortion in which (A) 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 for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.

At the end of the extensive list of findings in H.R. 4965 comes this conclusion:

For these reasons, 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.

As before, the pro-abortion side will think of every conceivable maneuver to derail the bill.

On the simple-minded side, we have Planned Parenthood's feeble argument that Congress "shouldn't practice medicine." The more clever approach is to offer competing legislation that claims to ban "late-term" abortions but which in fact is all loophole and no ban. Your representative will be under enormous pressure by the pro-abortion elite to accept such "phony bans." At this point you need to remind your representative that according to the pro- abortionists' own admission (remember Ron Fitzsimmons, the executive director of the National Coalition of Abortion Providers?), partial-birth abortions are typically performed in the fifth and sixth months of pregnancy, mostly on healthy women with healthy babies. The House of Representatives may pass the bill by the end of July. Then comes the hard part: passage through the U.S. Senate. As the Senate is currently constituted - - with Senator Tom Daschle leading a one-vote Democratic majority - - it will be difficult to get a vote in the Senate. But it is worth the fight. Remember, we no longer need that long-elusive two-thirds majority, because the President, George W. Bush, is eager to sign the ban.