? Partial-Birth Abortion Ban Makes History

WASHINGTON — After years of battling in Congress, a nationwide ban on a procedure that kills late term unborn babies with scissors is expected to be signed by the president and become federal law.

The U.S. Senate passed the Partial-Birth Abortion Ban Act Oct. 21 by a vote of 64-34, three weeks after the House passed its own version on a 281-142 vote.

Longtime champion of the bill Sen. Rick Santorum, R-Pa., said, “We have reached a significant victory as we continue to build a more compassionate society and a culture that values every human life.”

“President Bush is to be praised for promising to sign the ban on the horrific procedure known as partial-birth abortion,” William Bennett, co-director of Empower America, said. “This procedure is not only cruel; it is a mainstay of the culture of death. The debate about partial-birth abortion was about building a culture of life. I am proud of this Congress and this president for deciding the question in favor of life and in favor of human rights.”

During his January State of the Union address, the president said, “We must not overlook the weakest among us. I ask you to protect infants at the very hour of their birth and end the practice of partial-birth abortion.”

In a March statement of administration policy, the White House declared the specific ban on partial-birth abortion before Congress to be “morally imperative and constitutionally permissible.”

The bill, Congress’ third try at legislating a prohibition on these late-term abortions, would be the first federal restriction on abortion since the Supreme Court's 1973 Roe v. Wade ruling. President Bill Clinton twice vetoed legislation banning partial-birth abortion.

But it won't take long for the ban to face a challenge in the courts.

Outgoing NARAL Pro-Choice America president Kate Michelman said after the vote, “President Bush has vowed to sign this deceptive legislation, which will make him the first president ever to outlaw safe medical procedures, and the first to sign an abortion criminaliza-tion since Roe v. Wade. No one should be fooled as to the real intentions of this bill's sponsors: They want to take away entirely the right to personal privacy and a woman's right to choose.”

“In 2000, five Supreme Court justices said that Roe v. Wade guaranteed the right of abortionists to perform partial-birth abortions whenever they see fit — but Congress is now inviting the Supreme Court to re-examine that extreme and inhumane decision,” said Douglas Johnson, legislative director of the National Right to Life Committee, after the Senate vote.

Democratic presidential candidate Howard Dean, former governor of Vermont and a medical doctor, told reporters: “This bill will chill the practice of medicine and endanger the lives of countless women. This kind of legislation serves the sole purpose of chipping away women's constitutionally protected reproductive rights and overturning Roe v. Wade.”

Writing in the online magazine Slate, abortionist Warren Hern made the same argument in a column titled, “Did I Violate the Partial-Birth Abortion Ban?”

But even the largely pro-abortion readership of that magazine had a hard time stomaching his comments.

“I began an abortion on a young woman who was 17 weeks pregnant,” he wrote. “I inserted my forceps into the uterus and applied them to the head of the fetus, which was still alive, since fetal injection is not done at that stage of pregnancy. I closed the forceps, crushing the skull of the fetus, and withdrew the forceps. The fetus, now dead, slid out more or less intact.”

In fact, as written, the ban specifically bans abortions where an infant is literally partially delivered — delivered “past the navel… outside the body of the mother,” or “in the case of head-first presentation, the entire fetal head is outside the body of the mother,” before the killing. The abortion procedure would be allowed if it were necessary to save the mother's life.

Though opponents of the ban such as Planned Parenthood warned throughout the congressional debate that the bill would “outlaw a medical procedure used primarily in emergency abortions,” abortion opponents remember well that Ron Fitzsimmons of the National Coalition of Abortion Providers said in 1997 that “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. The abortion-rights folks know it, the anti-abortion folks know it, and so, probably, does everyone else.”

“One of the facts of abortion,” Fitzsimmons continued, “is that women enter abortion clinics to kill their fetuses. It is a form of killing. You're ending a life.”

Next Steps

Even before the ban became law, lawmakers and pro-life advocates have been considering the next steps — and challenges.

“Passage of the federal ban draws a bright line between abortion and infanticide and is a great victory for decency,” said Nikolas Nikas, general counsel of Americans United for Life. “The question now is: Will five unelected judges on the Supreme Court continue to reject the will of 30 States, almost two-thirds of the U.S. House of Representatives (281-142) and U.S. Senate (64-34), the president, 70% of the American people, and the weight of medical science?”

“The pro-abortion groups … are likely to find a sympathetic judge who will enjoin enforcement of the law,” conceded Gerard Bradley, a professor at the University of Notre Dame's law school who testified in favor of the bill before a House committee earlier this year. He says that the ban passed “is nevertheless constitutional, for it meets both objections the Supreme Court had against the Nebraska law struck down in Stenberg,” a 2000 Supreme Court decision.

Bradley said, “[O]f the two objections — those being the need for a health exception and distinguishing the prohibited procedure from other abortion methods presumed to be safe from constitutional attack — the former is likely to be the focal point of pro-abortion attack. But Congress found that no case of medical necessity for partial-birth abortion has been identified. And there is none. Almost certainly, the Supreme Court will eventually decide the constitutionality of the new law.”

National Right to Life's Johnson said the litigation will pose the question: “Does the Constitution really guarantee a right to deliver a premature infant to within inches of complete birth, and then kill her?”

Passage of the bill is an obvious win for pro-lifers.

Said Notre Dame law professor Richard Garnett, “It would be nice to think that this law, combined with the Born Alive Infant Protection Act, are important in that they assert that there are lines, somewhere, beyond which even America's strikingly permissive abortion regime will not extend. Certainly, even had the law not passed, the ‘partial-birth issue’ seems to have done a lot to reshape public opinion, in the pro-life direction.”

But he also warned pro-lifers that the ban also brings new problems.

“The ban is not a panacea — and it may not be all good, either,” Garnett said. “I worry that the issue has given people a kind of cover to be untroubled by the vast majority of abortions that occur. Another troubling feature is the realization that there is a strong lobby that is willing to defend even this procedure, in the name of untrammeled autonomy.”

But, as Garnett and other pro-lifers say, despite the challenges ahead, there is clear reason to give thanks.

Said Arizona Republican Sen. Jon Kyl, “Sometimes I fear that our country's social discourse has irreparably deteriorated to a point where basic moral values are now shrouded in partisanship and politics. If we cannot come to terms with the clear, undisputable horror of inserting scissors into the skull of an otherwise viable and nearly fully developed child to end her life, without worrying about ramifications to some special-interest agenda, then our great nation is in serious trouble. Luckily, a large, bipartisan majority in Congress has not allowed that to happen here.”

Kathryn Jean Lopez is editor of National Review Online

(www. nationalreview. com).

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