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Supreme Court to Consider Partial Birth Abortion Ban

The Supreme Court announced today that it will hear a challenge to the Partial Birth Abortion Ban passed by Congress in 2003:

The law, the Partial Birth Abortion Act, was passed in 2003 but was immediately challenged in court and has never taken effect. It was ruled unconstitutional by three federal appeals courts in the last year, in rulings based on a Supreme Court decision in 2000 striking down a similar law passed in Nebraska.
In that case, Stenberg v. Carhart, a 5-to-4 majority that included the now-retired Justice Sandra Day O'Connor found that any abortion ban must include an exception for the health of the woman. Justice Alito was sworn in three weeks ago as Justice O'Connor's successor after a rancorous confirmation process that focused heavily on the question of abortion. The case accepted by the court today does not involve a challenge to the core ruling that established a legal right to abortion, Roe v. Wade. But it is certain to rekindle questions of whether the court in the post-O'Connor era will be more sympathetic to efforts to limit abortion rights.

The Times muddles the issue a bit here, partly because "partial birth abortion" is a vague term that gets used in a lot of different contexts. Most of the public, I would imagine, thinks that "partial birth abortion" refers to a late-term abortion on an otherwise viable fetus—primarily, an abortion in the third trimester. Opponents of this sort of thing argue that the baby is basically being birthed and then killed, and most people probably have something like this in mind when they tell pollsters that they oppose "partial birth abortion."

But very often "partial birth abortion" is used instead to refer to intact dilation & extraction (D&X), a medical procedure that's most often carried out in the second trimester (and sometimes even the first trimester), rather than the third. So laws that ban this procedure can end up banning far, far more than the common understanding of "partial birth abortion." In fact, as Jessica of Feministing points out, these sorts of laws can be so vague that in 1998, Wisconsin doctors refused to perform any abortions whatsoever after a (totally unconstitutional) D&X ban was passed by the state legislature and upheld by state courts. They just couldn't figure out what was being banned and what wasn't, and didn't want to risk prosecution.

Congress' 2003 law most resembles the Wisconsin law—mostly notably, the ban isn't limited to late-term or post-viability abortions—and even goes a bit further, banning procedures besides D&X. It goes far beyond "partial birth." (Law professor Jack Balkin had a longer discussion of these vagueness problems back in 2003.) Not only that, but it makes no exceptions for the health of the mother, which is, presumably, the main issue the Supreme Court will discuss. But if the law is upheld, it wouldn't be surprising if, in some states, it had the exact same effect that the Wisconsin partial birth abortion ban had. Not to mention the fact that it will make abortions even more difficult—or outright impossible—for many poorer women, who are often deterred by various state laws from getting access to abortions until later on in their pregnancies. And no doubt that's exactly what Roberts and Alito are after.

Posted by Bradford Plumer on 02/21/06 at 1:40 PM | E-mail | Print | Digg this | de.licio.us

Comments

Good point on the PBAB's vagueness; doctors have objected to that from the start. Quoting from my 2003 article for Womens eNews on doctors' views:

"According to the act, "any physician who . . . knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than two years, or both."

Dr. Paul D. Blumenthal, an obstetrician-gynecologist at Baltimore's Johns Hopkins Bayview Medical Center and professor at its Medical University, predicts that, if the act is made into law, some doctors would refuse to provide any second-trimester abortions under the threat of new criminal prosecution and civil liability.

One focus of medical objection to the act is its lack of precision about the issue of "viability," or when a fetus could survive outside the womb. For many, viability is the boundary point, reached in the third trimester or very late in the second, when a fetus is considered fully human.

In a statement, the American Association of Obstetricians and Gynecologists says it "has never supported post-viability abortions except for the constitutionally-protected exception of saving the life or health of a woman" and that it continues to oppose state or federal legislation known as "partial-birth abortion bans." The group says that descriptions of "partial-birth abortion," in this act and in previous legislation, "are vague and do not delineate a specific procedure recognized in the medical literature." The American Medical Association says it refuses to use the term.

Obstetrician-gynecologist Dr. Katharine O'Connell of New York's Columbia Presbyterian Hospital says it is not possible to say what the law does or does not ban because the language is too vague.

"There's no such thing as a 'partial birth abortion,'" says O'Connell, a member of the New York-based advocacy group Physicians for Reproductive Choice and Health. "Right from the start the name has been coined to confuse the public," she says. "There's no such thing in the medical textbooks, it's purely a political term."

O'Connell challenges the act's assertion that the ban "will draw a bright line that clearly distinguishes abortion and infanticide." Says O'Connell: "The line between personhood, between a fetus and a person, is the line of viability . . . Nothing is changed with this law regarding that line."

Except when they are needed to save the health or life of a woman, abortions of a viable fetus are already illegal in most states. It is therefore widely assumed that the ban is moving in on abortions performed in the second trimester, or roughly the 12th through 24th week of pregnancy, when the fetus is not yet viable."

Posted by: S. Batchelor on 02/24/06 at 1:47 PM

I think it's time we complain to the DNC about Democrats who don't support a woman's right to choose. For instance, the six senators in South Dakota who voted to ban all abortions, even for rape and incest and health reasons.

Also, serious consideration needs to be given as to whether you send money to the DNC. Remember money to the DNC is given to the state parties to support candidates such as these six senators and the Democratic senator in Mississippi who just introduced legislation to ban abortion. Your money would be better spent going to a candidate directly that you know supports the right to choose.

The Democratic Party takes us for granted because they say we have no place to go...as I just heard from a DNC staffer. It is time the Democrats who do no support abortion rights be punished. It is time for them to leave the party.

Go to their website and fire off a letter...

http://www.democrats.org/page/s/contact

or better yet, pick up the phone and call them (be prepared to wait....)

202-863-8000

Call South Dakota Democratic Party

605-224-1750
write South Dakota

Democratic Party
democrats@sddp.org

Posted by: Bunnie on 03/11/06 at 1:25 PM

We should be ashamed as human beings that PBA is being practiced! I've got different feelings for the first trimester, but thes ePBA's are absolutely inhumane....a sad reality of our dark nature. I read a great article here about PBA....great insight: http://constitutionalmatters.com/thevoice/oped/pba

Posted by: Jackson on 10/16/06 at 2:17 PM