U.S. House Passes Ban on Partial-Birth Abortion, 274-151 Will the Senate's Democratic Leaders Kill the Ban?
By Douglas Johnson
NRLC Federal Legislative Director
WASHINGTON (August 6, 2002) - - With strong support from President Bush, the U.S. House of Representatives has passed NRLC-backed legislation to place a national ban on partial-birth abortions. The fate of the bill will now be decided by the Democratic leadership of the U.S. Senate.
The House approved the Partial-Birth Abortion Ban Act (H.R. 4965) by a bipartisan vote of 274-151 on July 24. The measure is sponsored by Congressman Steve Chabot (pronounced "SHA-bit") (R-Ohio), and in the Senate by Senator Rick Santorum (R-Pa.).
In a statement sent to the House the day before the vote, the White House said, "The Administration believes that enactment of H.R. 4965 is morally imperative and constitutionally permissible to prohibit this very abhorrent form of abortion."
But according to The New York Times (July 25), "Abortion rights advocates are counting of the majority leader, Senator Tom Daschle, Democrat of South Dako-ta, to prevent a bill from coming to the floor. 'The Senate is our firewall,' one abortion rights supporter said."
The Democrats currently control the Senate by a single seat, 51-49. The majority leader has broad powers to schedule or to obstruct legislation.
On the same day the House passed the bill, Daschle told reporters that he thought the Senate might be too busy to consider the bill before the end of the session in October.
"We have so many things on the plate that we're going to have to make some decisions about what merits the highest priority," Daschle said.
Subsequently, Daschle's press secretary, Jay Carson, told the Sioux Falls, South Dakota Argus Leader that Daschle "supports banning the procedure, but is not sure if there is room on the Senate's schedule.
"There isn't even enough days to get in everything that is already on it," Carson said.
In response, Senator Santorum told NRL News, "We should never claim to be too busy to consider legislation promoting the protection of life. There is no need for a long debate - - a few hours will suffice. The Senate has debated similar legislation many times."
House Majority Leader Dick Armey (R-Tx.) said, "The House has acted in plenty of time for the Senate to do the same. We now have a president who will sign this bill. It must not become another tombstone in the Senate's legislative graveyard."
Congress has approved national bans on partial-birth abortion twice before, but they were vetoed by President Clinton in 1996 and 1997. On each occasion, the House voted to override the vetoes, but supporters fell short of the necessary two-thirds majority in the Senate.
The Senate last considered the bill in 1999, when 63 senators voted to pass it (including 14 Democrats), with two additional ban supporters absent.
But now with a president who is eager to sign the bill rather than veto it, "This time it is for keeps," said Congressman Chabot.
Under Senate rules, no committee action is required on the bill that the House has passed. The House-passed bill is "on the Senate calendar," which means that the majority leader could bring it up at any time for a vote. However, without the majority leader's permission, bills "on the calendar" simply die without action.
"If there was a clean up-and-down vote on the bill passed by the House, the Senate would approve it," said NRLC Federal Legislative Director Douglas Johnson. "If the ban on partial-birth abortion does not reach President Bush for his signature, the blame will rest squarely on the Senate Democratic leadership."
Phony Ban Rejected
On July 24, the debate in the House covered much of the same ground as previous House debates on the issue.
The House Republican leadership, which supports the ban, brought the bill to the floor under a procedure that allowed opponents to offer only a single amendment, known as a "motion to recommit." This motion, offered by pro-abortion Rep. Tammy Baldwin (D-Wi.), would have added an exception to the bill to allow a partial-birth abortion "where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."
The bill already contains a "life of mother" exception, but the addition of "health" would have allowed any abortionist the right to perform partial-birth abortions simply by asserting that it would protect the mental or emotional well-being of the mother.
Congressman Chabot warned that adoption of such a "health exception" would mean that each abortionist would enjoy "unfettered discretion in determining when a abortion can be performed."
The House rejected the Baldwin motion, 241-187. The ban was then passed on a vote of 274-151.
NRLC's Douglas Johnson noted that 37 House members first voted for the Baldwin killer amendment, which would have rendered the bill meaningless, and then voted to pass the bill after the amendment failed. These 37 lawmakers "showed that they weren't really committed to enacting a genuine ban on partial-birth abortions."
The roll calls on both the Baldwin motion and on final passage of the bill are posted in 107th Congress voting record at the NRLC Legislative Action Center at http://www.capwiz.com/nrlc/ home/, and also appear on pages 20-21 of this issue.
Pro-abortion House members complained that they were not allowed to offer another alternative proposal, sponsored by two of the pro-abortion leaders in the House, Rep. Steny Hoyer (D-Md.) and Jim Greenwood (R-Pa.), which they claimed would "ban" all methods of "late-term" abortion, but with a "health exception." Congressman Hoyer repeatedly has admitted that this so-called "ban" (currently numbered H.R. 2702) actually would allow third-trimester abortions even for "mental health." (See www.nrlc.org/abortion/pba/Phony%20ban%20on%20late-term.pdf)
In the Senate, a similar "phony ban" has been promoted by Senator Dick Durbin (D-Il.) and others. Commenting on the Sen-ate version of the phony ban in 1997, Dr. Warren Hern - - who is the author of the standard textbook on late-term abortion methods, and who performs many third-trimester abortions - - said it would allow him to perform a third-trimester abortion on "any pregnancy," since every pregnancy involves some risk.
One opponent, Rep. Nancy Johnson (R-Ct.), said she was "deeply offended" by the bill, which she called "the worst bill that has come before Congress." She also asserted, "There are no late-term abortions of healthy babies that are legal."
But bill supporter Rep. Sue Myrick (R-NC) said, "As a mother and a grandmother, it is still astonishing to me today that this is even remotely legal in America - - but it is."
Pro-Life Reactions to Vote
"We're delighted that the House voted in an overwhelmingly bipartisan way to end this horrific procedure," said Shannon Royce, director for government relations at the Southern Baptist Ethics & Religious Liberty Commission. "We hope and pray the Senate will take up the bill and pass it before the August recess."
Cathleen Cleaver, a spokeswoman for the U.S. Conference of Catholic Bishops, said, "This is a cruel and dangerous procedure -- abhorred by most Americans, condemned by the American Medical Association, twice banned by Congress. It can no longer be justified by any but the most radical proponents of abortion. The fate of this bill now lies with the Senate."
David Stevens, MD, Executive Director of the Christian Medical Association, noted, "Inflicting pain on developing infants such as that incurred during a partial-birth abortion would never be countenanced by any medical review team for human experimentation. There is absolutely no medical reason whatsoever that justifies allowing an abortionist to cut into the cranium of a developing baby, inflict a horrific level of pain, and then suction out its brain. If someone treated a dog in this inhumane way we would lock them up and throw away the key. If we can't at least stop this horrible procedure, where can we draw the line?"
Pro-Abortion Reactions
NARAL President Kate Michelman called the House vote "a political stunt to shift the focus from the fact that women, not the government, should make medical decisions."
Vicki Saporta, president of the National Abortion Federation, said that lawmakers who voted for the ban had "shirked their responsibility and ignored Supreme Court precedent."
Carlton W. Veazey, president of the Religious Coalition for Reproductive Choice (RCRC), earlier said the bill "would impose a narrow religious view about abortion on everyone." RCRC describes itself as "the national alliance
of religious organizations from 16 denominations and faith traditions, including the Episcopal Church, Presbyterian Church (USA), United Methodist Church, United Church of Christ, Unitarian Universalist Association, and Reform and Conservative Judaism."
History of the Bill
NRLC helped develop the Partial-Birth Abortion Ban Act, which was originally introduced in 1995 by Congressman Charles Canady (R-Fl.), who retired from Congress in 2000.
Congress twice approved the ban, but President Bill Clinton vetoed those bans in 1996 and 1997. On each occasion, the House voted by more than the required two-thirds margin to override the vetoes, but in the Senate pro-life forces fell short of the two-thirds threshold.
During the 106th Congress (1999-2000), the House approved a ban for the third time. In October, 1999, the Senate also approved the ban, but only after adding an amendment, sponsored by Senator Tom Harkin (D-Iowa), to endorse Roe v. Wade.
The House and Senate had not yet resolved their differences on that bill when, on June 28, 2000, a five-justice majority of the U.S. Supreme Court struck down a Nebraska law that was similar to the proposed federal ban. (By that time, twenty-three other states had also passed genuine bans on partial-birth abortion.) In that case, Stenberg v. Carhart, the majority ruled that Roe v. Wade covered even the brutal practice of partial-birth abortion. Pro-life leaders in Congress subsequently shifted their focus to other issues for a time.
The new bill introduced in the current Congress differs in two respects from the versions previously vetoed by President Clinton. Both changes were made in response to the Supreme Court's Carhart ruling.
The first change is in the definition of "partial-birth abortion." 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 "dilation and evacuation" (D&E) method. In a D&E abortion, a well-developed unborn child is dismembered piece by piece, and during this process arms or legs are sometimes pulled into the birth canal before being torn off.
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]
In Carhart, the five-justice majority 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 second trimester or third trimester. 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.
H.R. 4965 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 findings also cite certain past rulings in which the Supreme Court has recognized and deferred to the broad fact-finding powers of Congress.
Facts and Fiction About Partial-Birth Abortion
Most partial-birth abortions are performed in the fifth and sixth months of pregnancy, at least several thousand times each year. At this stage, an infant who delivers spontaneously is usually born alive. There is abundant medical evidence that the baby at this stage is extremely sensitive to pain.
When legislation dealing with partial-birth abortion was first introduced in Congress in 1995, major pro-abortion groups insisted that the method was used only a few hundred times a year, and only in cases involving acute medical crises - - claims repeated by some lawmakers today. But such claims were entirely discredited by early 1997, especially after the executive director of the National Coalition of Abortion Providers admitted that the procedure is performed thousands of times annually, mostly on healthy babies of healthy mothers. (See clippings at www.nrlc.org/abortion/pba/index.html )
For additional extensive documentation on partial-birth abortion, see the section of the NRLC website devoted to the issue at www.nrlc.org/abortion/pba/index.html .
Among the documents that may be particularly useful are NRLC's recent letters to Congress on the Partial-Birth Abortion Ban Act, "Key Facts on Partial-Birth Abortion" ( www.nrlc.org/abortion/pba/KeyfactsJune02.html ), and NRLC's detailed congressional testimony of March 11, 1997 ( www.nrlc.org/abortion/pba/test.html )