Recent Developments on Partial-Birth Abortion

Responding to President Bush's Call to Ban "Abhorrent Procedure," Congress Takes Up Partial-Birth Abortion Ban Act

 

WASHINGTON (March 7, 2003) - - The Partial-Birth Abortion Ban Act - - a major pro-life federal legislative priority since 1995 - - is slated for congressional action in the immediate future. There is fierce resistance to the bill among lawmakers closely allied with the abortion lobby, and its enactment is far from guaranteed - - but pro-life forces are guardedly optimistic of success because of strong support for the legislation by President Bush.

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 153 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 - - 4-1/2 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 a 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.

[For further information, contact Douglas Johnson, legislative director of 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.]