Partial Setback


The Senate passed a bill on Tuesday to outlaw so-called “partial-birth abortions,” the first federal ban of its kind. Bush will sign off on the bill, no doubt with a flourish, but the matter won’t end there. Abortion-rights advocates promise a constitutional challenge.

The ban, of course, eliminates “intact dilatation and extraction,” a procedure that involves extracting the fetus from the womb before removing it intact, typically in the 5th or 6th month of pregnancy.

Bush called the ban “very important legislation that will end an abhorrent practice and continue to build a culture of life in America.” Although the measure cruised through the Senate, 64-34, its not so clear it’ll make it through the legal battles ahead. Abortion-rights advocates have already promised to take the bill to court, saying it’s too broad and doesn’t include necessary exemptions for cases involving the health of the mother. Legal types say opponents are on solid ground.

A similar Nebraska law was overturned by the Supreme Court in 2000. In that case, Stenberg v. Carhart, the Court indicated that the law was unconstitutional because it failed to provide an exception ensuring the health of the mother and was too broadly written, with the potential to prohibit other types of abortion procedures (which would overstep the limits set by Roe v. Wade). The 2000 Supreme Court decision invalidated Nebraska’s ban on the procedure and up to 30 other state laws.

Critics say that since the Supreme Court set out such clear guidelines in the Nebraska case, it should have been easy for Congress to construct a bill that followed them. But this one doesn’t. The Chicago Tribune reports:

“When the Supreme Court invalidated state laws three years ago that banned a controversial procedure known as partial-birth abortion, the justices handed legislators a road map of sorts for drafting new statutes. In the court’s 5-4 majority opinion, and in a separate opinion by Justice Sandra Day O’Connor, the justices indicated they would approve laws that were narrowly written to ban only a specific procedure and included an exception that allowed doctors to perform the procedure if the woman’s health dictated it. But the legislation Congress sent to President Bush late Tuesday doesn’t clearly do either.”

Why doesn’t the law provide for the health of the mother? According to Jay Sekulow, chief counsel of the American Center for Law and Justice, a conservative advocacy group, that would have left too much wiggle room for doctors. Health exceptions could be interpreted too broadly, Sekulow says, giving doctors virtually any reason to perform the procedure.

Meanwhile, ban supporters are confident the bill will survive all constitutional challenges. According to the Washington Times, a Gallup poll in January showed that 70 percent of Americans wanted federal legislation banning this type of abortion. The American Center for Law and Justice, which has pledged to assist in defending the new law in court, released this message affirming their belief in the bill’s legality:

“This national ban on partial-birth abortion is well crafted and legally sound and we’re confident that it will survive a constitutional challenge. After President Bush signs this measure into law, we will work aggressively to see that this ban clears the legal challenges and survives the constitutional attacks that will follow. It’s clear that both Congress and most Americans want to see this gruesome procedure outlawed.”

Some critics argue that the ban passed so easily because it is a misunderstood procedure, often depicted in graphic and gruesome terms. Pro-lifers call it “partial-birth abortion,” and the term has stuck.

According to the American College of Obstetricians and Gynecologists (ACOG) , the national medical organization representing 90 percent of all Ob-Gyns in the country, the procedure is not significantly different from other abortion procedures. They call it a “a rare variant of a more common midterm abortion procedure know as dilatation and evacuation. ACOG condemns the bill in a statement on their website, explaining that congress has no place second-guessing a doctor’s judgment of what’s best for a patient:

“ACOG’s Statement of Policy explains why ACOG believes such legislation to be ‘inappropriate, ill advised, and dangerous’…Although a select panel convened by ACOG could identify no circumstances under which intact D&X would be the only option to protect the life or health of a woman, intact D&X “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman’s particular circumstances, can make this decision (emphasis added).

“The medical misinformation currently circulating in political discussions of abortion procedures only reinforces ACOG’s position: in the individual circumstances of each particular medical case, the patient and physician–not legislators–are the appropriate parties to determine the best method of treatment.”

Eric Zorn of the Chicago Tribune argues that pro-choice activists have remained unconvincing in their arguments and haven’t made a case for the keeping the procedure legal. He writes that while the ACOG’s opinion may be valuable, it wasn’t made available enough:

“If the latter half of this statement is true–I can’t judge either way, as my medical education ended with high school biology–ACOG, the National Abortion Rights Action League and Planned Parenthood have truly failed to get the word out to the public.”

Most abortion supporters worry that this law would open the way to flood of legislation banning other procedures. The Christian Coalition says “bring ’em on!” “This is a very historic vote for America and it is just a matter of time before the infamous Supreme Court decision, ‘Roe V. Wade’ is overturned.”

On the other hand, the legislation may be just the rallying point pro-choice advocates have been waiting for. Zorn speculates on what the bill will mean for future legislation on abortion:

“The question now is going to be whether this victory by opponents of abortion rights, if upheld by the courts, is the thin end of a wedge that will result in the banning of many more types of abortion procedures, or whether it will slow or reverse the anti-abortion movement by robbing it of its best issue and energizing abortion-rights supporters.”