WASHINGTON — Most of the major hurdles facing a ban on partial-birth abortion have been overcome: Bill Clinton, who twice vetoed congressional bills banning the procedure, is out of office. Democrats, who largely opposed a ban, are out of power. George W. Bush is waiting to sign a bill, once differences in the House and Senate versions are ironed out.
The only major question is whether the new law will survive Supreme Court scrutiny. Backers of the bill that passed in the House of Representatives by a vote of 282-139 on June 4 are confident it is crafted carefully enough to pass constitutional muster.
Equally confident are the Planned Parenthood Federation of America, the American Civil Liberties Union Reproductive Freedom Project and the National Abortion Federation, which plan to sue in federal court as soon as Bush signs the ban into law.
The bill's author said the bill was specifically written to address the concerns of the Supreme Court.
“We fully expect a challenge,” said Ohio Republican Steve Chabot, who chairs the House judiciary constitution subcommittee. “But the bottom line is this is a gruesome, inhumane, barbaric procedure that should not be allowed.”
The bill stipulates fines and up to two years' imprisonment for doctors who perform partial-birth abortions.
“Opponents of reproductive freedom are simply playing fast and loose with both women's health and the Constitution,” said Laura Murphy, a spokeswoman for the ACLU. “If we have to go to court to stop them, we will.”
“The anti-choice movement claimed earlier versions of this bill banned only one procedure, but the Supreme Court said otherwise,” Murphy said. “This bill, too, bans an array of safe and proven abortion techniques, including the most widely used second-trimester procedure.”
The Supreme Court overturned a Nebraska ban in the 2000 Carhart v. Stenberg decision. But Gerard Bradley, a professor at the Notre Dame School of Law, finds that Congress has rectified a major complication that the court had with the Nebraska law. That complication had to do with whether the law's proscription of the intact dilation and extraction method — partial-birth abortion — would also affect the more common dilation and evacuation method.
A dilation and evacuation abortion involves inserting a vacuum to end the life of an unborn child while he is inside the womb. In a dilation and extraction, the abortionist dilates the cervix only enough to begin the process of birth but not enough to allow full delivery. With the unborn child's head still inside the mother's body, the abortionist punctures the back of the neck and removes the baby's brains, collapsing the skull.
Justice Stephen Breyer, writing for the majority in Carhart, said: “sing this law some present prosecutors and future attorneys general may choose to pursue physicians who use [dilation and evacuation] procedures, the most commonly used method for performing previability second-trimester abortions,” he said, referring to the method of abortion where a baby's body is cut into pieces in utero and then pulled out piece by piece by a doctor. “All those who perform abortion procedures using that method must fear prosecution, conviction and imprisonment. The result is an undue burden upon a woman's right to make an abortion decision.”
What was “shoddy” about the Nebraska case, Bradley said, was its use of the phrase “substantial portion” of a living unborn child. “Because a [dilation and evacuation] procedure may commonly involve pulling from the birth canal a limb or extremity — the court referred repeatedly to ‘arm and a leg’ and, at one telling point, ‘as small a portion as a foot,’” Bradley said.
The bill passed by the House on June 4 — and the similar one passed in March by the Senate — defines a partial-birth abortion as any abortion in which the baby is delivered alive until “in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother” or, if the baby is delivered head first, “the entire fetal head is outside the body of the mother,” before being killed.
“This bill's definition of the prohibited procedure — most pointedly, delivery of ‘the entire fetal head’ or, in the case of breech delivery, ‘any part of the fetal trunk past the navel’ — overcomes the vagueness and uncertain application of the analogous Nebraska language — ‘substantial portion’ of the unborn child,” Bradley said.
“No abortion doctor could confuse what is prohibited by [this bill] and a [dilation and evacuation] abortion,” he said.
The Bush administration June 4 called the ban “morally imperative and constitutionally permissible.” After the House vote, the president urged Congress to “quickly resolve any differences and send me the final bill as soon as possible so that I can sign it into law.”
The legislation in the Senate contains the Harkin Amendment, which is an endorsement of the Roe v. Wade decision that removed all state laws against abortion. The House seems unlikely to endorse such language, so disputes will be settled in conference committee.
Cathy Cleaver, pro-life activities spokeswoman for the U.S. bishops, said it will be a “historic event” when Bush signs the bill into law.
“It will be the first federal law to forbid an abortion procedure since Roe v. Wade in 1973,” she said.
“We have lived in denial of the violence of abortion for far two long,” said Rep. Christopher Smith, a New Jersey Republican, during debate. “Today, we can stop some of this violence against children.”
Another concern involves whether an exception for health must be included to pass constitutional muster. The current bill includes no health exemption — and that has abortion supporters upset.
“We are voting to limit a woman's access to safe and legal medical procedures,” said Rep. Lynn Woolsey, a California Democrat.
“Things can go tragically wrong in the final stages of pregnancy,” Woolsey said. “A woman should not be required to risk her health and future fertility by continuing a dangerous pregnancy.”
But supporters of the ban note that the American Medical Association has stated the procedure is never necessary.
On its Web site, the association states: “According to the scientific literature, there does not appear to be any identified situation in which [partial-birth abortion] is the only appropriate procedure to induce abortion, and ethical concerns have been raised about” the procedure.
Douglas Johnson, legislative director for the National Right to Life Committee, said abortion activists are trying to deceive the public with the “health” exemption.
“It is well documented that partial-birth abortions are performed thousands of times annually and that the vast majority are performed on healthy babies of healthy mothers during the fifth and sixth months of pregnancy,” he said.
Although the Supreme Court had ruled against the pro-life position in 2000, Johnson remained confident the court would find this bill to be constitutional.
“The court did strike down a similar ban in Nebraska. They said Roe must allow partial-birth abortions for a healthy baby and a healthy mother,” Johnson said. “They didn't just say it was legal for special circumstances.”
But he added: “We hope when this bill comes to the Supreme Court there will be at least five judges to challenge such extremism.”
Although there is speculation that as many as two judges on the court might retire this summer, giving Bush a chance to appoint pro-life jurists, Johnson said a change of opinion would not necessarily require different judges on the bench.
“Sometimes justices change their mind,” he said. “Justice O'Connor was part of the five-justice majority that struck down the Nebraska law, but we believe language in her concurrence strongly suggests that the revised definition contained in [the House bill] would satisfy her.”
Joshua Mercer is based in Washington, D.C.