Aborted Rights

Abortion, once again, is front and center in the culture wars.


Abortion is shaping up as a key issue heading into the presidential election year. On Wednesday President Bush signed the Partial Birth Abortion Ban Act, the first criminalization of an abortion procedure since Roe v. Wade, which legalized the procedure in 1973. Within hours, a federal court blocked the new law as unconstitutional, preparing the way for more legal fights.

Since the Clinton years, the anti-abortion movement has been making incremental progress towards outlawing a woman’s right to choose. With Bush in the White House, G.O.P. running Congress, and a potential vacancy in the Supreme Court, the pro-choice movement senses that its moment may be at hand.

The procedure outlawed on Tuesday has been successfully labeled as a “partial birth” abortion by the anti-choice movement. Which is odd, as doctors and other medical professionals note that no such medical procedure exists in the medical books.

The semantics of abortion have become part of the challenge the pro-choice movement faces in its legal battle to enjoin the act. The new law is appears to prohibit abortion procedures that typically take place beyond the 18th or 20th week of pregnancy. The law makes exceptions for women whose lives are in danger, but not for those whose health is at risk. It applies to any procedure in which a doctor “deliberately and intentionally vaginally delivers a living fetus.” This means that neither the fetus’ head nor body up to the navel can be “outside the body of the mother” before it is aborted. While such procedures are rare, many doctors and abortion rights advocates fear that the intentionally slippery language of the law could be bent to encompass more common abortions. Providers explain that there’s a chance that a living fetus could pass through the cervix in the midst of a common procedure performed after 12 to 13 weeks. Although the law requires such a procedure to be performed “deliberately and intentionally” some doctors have already cancelled appointments for second-trimester abortions for fear of breaking the new law.

Thorough descriptions of these late-term abortions are gruesome, and abortion opponents have made the most of the gory details. For years Operation Rescue has driven billboard-size “truth trucks” throughout the nation with enormous photographs of aborted fetuses. Even yesterday, as the president signed the bill into law he characterized the day as a celebration of children’s life.

“For years, a terrible form of violence has been directed against children who are inches from birth, while the law looked the other way…Today, at last, the American people and our government have confronted the violence and come to the defense of the innocent child.”

While the president has always opposed abortions, his speech clearly reflected a strategy of the anti-choice movement: to depict abortions as a form of child abuse. As William Saletan, the author of “Bearing Right: How Conservatives Won the Abortion War” writes for Slate, a 20 week-old fetus is unlike other children in that it’s hardly viable outside a woman’s body.

“This procedure doesn’t take place anywhere near the appointed hour of birth. If you paid close attention to the Senate debate, you might have noticed the part where Santorum said the procedure was performed ‘at least 20 weeks, and in many cases, 21, 22, 23, 24 weeks [into pregnancy], and in rarer cases, beyond that.’ He didn’t clarify how many of these abortions took place past the 20th week. A full-term pregnancy is 40 weeks. In 1992, the Supreme Court mentioned that viability could ‘sometimes’ occur at 23 or 24 weeks. Santorum described a 1-pound fetus as ‘a fully formed baby,’ noting that while it was only at 20 weeks gestation, it had a complete set of features and extremities. But according to the National Center for Health Statistics, the survival rate for babies born weighing 500 grams or less — that’s 1 pound, 1 ounce or less — is 14 percent.”

But such facts have been wildly distorted and Americans have apparently bought the “children’s rights” line, a recent USA Today poll showed that 70 percent of American backed the partial-birth ban.

Given the success of the anti-choice movement, advocates are worried that their opponents strategy could overturn Roe v. Wade, making virtually all abortions illegal. Karyn Strickler, formerly of NARAL, describes the slippery slope of abortion rights in a piece on Common Dreams. Although concerned, the choice advocates aren’t waiting for Strickler’s doomy prediction. Already in they’ve filed three cases in New York, California and Nebraska. A U.S. district judge in New York already granted a request to block enforcement of the ban. The ruling applies only to the plaintiffs, the National Abortion Federation and seven doctors, but is thought to have a broader application through the NAF, which provides half of the nations abortions. And on Wednesday a Nebraska judge blocked the ban on behalf on four doctors with multi-state licensees. In San Francisco another judge is scheduled to hear a similar case.

With a potential vacancy in the Supreme Court, the odds could be against the advocates of choice. The legal battles in the near future are going to be tough, and although the president acknowledges that America is not ready for abortion to be outlawed, the gradual chipping away of abortion rights is already well underway.