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New partial-birth abortion bill seeking to answer Supreme Court

WASHINGTON (BP)–New legislation to ban the partial-birth abortion procedure has been introduced in the House, and the proposal is specifically geared to answer the most recent objections to such a ban articulated by the Supreme Court, CNSNews.com reported July 10.

In the Stenberg vs. Carhart case, the Supreme Court held that Nebraska’s ban on partial-birth abortions was unconstitutional because it had “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Simon Heller, a consulting attorney for the pro-abortion Center for Reproductive Law and Policy, who argued Carhart’s case against the state of Nebraska, now has a new target, saying the proposed Partial Birth Abortion Ban Act of 2002 (H.R. 4965) imposes the same burden.

“The bill, as written, is clearly unconstitutional,” he told members of the House Judiciary Subcommittee on the Constitution July 9. “It jeopardizes women’s health.”

But Rep. Steve Chabot, R.-Ohio, chairman of the subcommittee and sponsor of the bill, believes the proposal meets the Supreme Court’s tests.

“The language in this legislation has been tightened up,” he said July 9. “The definition is more precise than it was in previous congressionally passed legislation, or the Nebraska partial-birth abortion ban.”

Robert Destro, a professor at the Columbia School of Law, agreed, saying the differences between H.R. 4965 and previous attempts to ban partial-birth abortion at the federal level are based, in large part, on Supreme Court Justice Sandra Day O’Connor’s opinion in the Carhart case.

“That’s why this statute is viewed as being such a threat, because it does, in fact, ask Justice O’Connor to consider, very specifically, where is the dividing line between the power of Congress to legislate on behalf of the life of the fetus and the ending point of the woman’s ‘right’ to terminate a pregnancy,” Destro said. “Does Roe v. Wade necessarily suggest that she has the right to a dead fetus?”

The proposed statute draws a distinction between “terminating a pregnancy,” which the court has ruled is protected, and “an overt act that the person knows will kill a partially delivered living fetus, whose body has cleared the birth canal” to a certain point.

The question justices will have to answer, Destro said, is: “Is this overt act … of killing the fetus necessary to preserve the life and the health of the mother?”

Curtis Cook, professor of gynecology and obstetrics at the Michigan State University College of Human Medicine and an expert in “high risk obstetrics,” said he believes the Supreme Court will have to answer that question “no” and find the bill constitutional.

“Never in the 10 years that I have been providing perinatal care to women with complicated pregnancies have I ever experienced a single clinical situation where partial-birth abortion has ever been required or even considered as a clinically superior procedure to other well-known and readily available medical and surgical options,” said Cook, who is board certified by both the American College of Obstetricians and Gynecologists and the Society of Maternal-Fetal Medicine.

As abortionists admitted in court testimony, he noted, the procedure is almost exclusively performed on healthy mothers with healthy babies usually between 20 to 26 weeks, or five to six months into the pregnancy.

“These infants are literally inches away from enjoying the full rights afforded any other American citizen, including the rights to life, liberty and the pursuit of happiness,” Cook said.

“This is what separates [partial-birth abortion] from other abortion techniques,” he said. “This is taking place outside the womb and this is taking place on an infant who is literally just about to be born.”

Even the American Medical Association, which typically opposes government intervention in medical matters, calls the procedure “bad medicine,” Cook said, noting some of the more serious health risks inherent in the procedure.

“The ones that I see are the more prolonged health risks; the concerns about this massive over-dilation of the cervix with 15 to 25 dilators, during this three-day process, to effect this partial-birth abortion. These women then have cervical weakness and an inability to carry pregnancies in subsequent pregnancies,” he explained. “It’s not only not necessary to protect women’s health, it may be endangering their health.”

Destro said overwhelming medical evidence, such as that described by Cook, could sway the Supreme Court to allow this carefully constructed ban on partial-birth abortions.

“Justice O’Connor wants to hear what the facts are; she has the controlling vote on this,” Destro said. “In a properly litigated, thoroughly litigated case, this one could be won.”
Johnson is the congressional bureau chief with www.CNSNews.com. Used by permission.

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  • Jeff Johnson