Partial Birth Abortion Ban Re-Introduced in Congress

By Christine Hall | July 7, 2008 | 8:29 PM EDT

( - House Republicans on Thursday re-introduced a bill banning a late-term abortion procedure dubbed "partial birth" abortion.

The House and Senate have previously passed such a ban, but President Clinton vetoed the measure in 1998. This time, Republicans control the presidency and both chambers of Congress, but the major stumbling block for a partial birth abortion ban could be the U.S. Supreme Court.

"A moral, medical and ethical consensus exists that partial birth abortions are gruesome and inhumane," said Rep. Steve Chabot (R-Ohio), the sponsor of the Partial Birth Abortion Ban Act of 2003.

According to bill supporters, Senate Majority Leader Bill Frist (R-Tenn.) and Judiciary Committee Chairman Orrin Hatch (R-Utah) have said they will expedite the bill in the Senate.

In the partial birth abortion procedure, a physician delivers a baby to the point where only the head remains inside the womb but then punctures the back of the skull and removes the brain before completing delivery.

A majority of Americans have consistently told pollsters that late-term abortions should be outlawed. According to an ABC News/Washington Post poll conducted in January, 86 percent of Americans said that abortion should be illegal when a woman is in the sixth month of pregnancy or later. Sixty-nine percent said that late-term procedures (like partial birth abortion) should be illegal.

However, in June 2000, the Supreme Court struck down a Nebraska partial birth abortion ban. The court ruled in a 5-4 decision in Stenberg v. Carhart that the state's definition of the procedure was too vague and could interfere with another late-term procedure called "dialation and evacuation" (D&E).

Drafters of the federal bill believe their legislation would survive Supreme Court scrutiny with a more precisely crafted description of the partial birth procedure.

Also, said Rep. Jim Sensenbrenner (R-Wis.), this bill contains many "findings of fact" about the procedure and how it exposes women to substantial and additional health risks. The court traditionally gives deference to legislative findings of fact.

"A majority of the Supreme Court has long been skeptical of State and federal attempts to eliminate or restrict abortion," noted Columbus School of Law Prof. Robert A. Destro in testimony before the House Judiciary Committee last year.

In Stenberg v. Carhart, 530 U.S. 914, 920 (2000), the Court reaffirmed its view that a law that has "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus" is unconstitutional.

Justice Sandra Day O'Connor is widely viewed as the decisive vote in a legal challenge to a partial birth abortion ban.

While Destro believes that the federal bill will pass muster with O'Connor, John Eastman, a constitutional law professor at Chapman University School of Law in Orange, Calif., thinks otherwise.

"I don't think it's any easier for Congress to get over her hurdle than the states," said Eastman. "This is not a 14th Amendment issue that applies only to states; this is some inherent right to privacy that exists throughout the Constitution's 'emanations.'"

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