Senate Resumes Efforts to Ban Partial Birth Abortion

By Jeff Johnson | July 7, 2008 | 8:29 PM EDT

Capitol Hill ( - The U.S. Senate Monday night resumed its efforts to ban the partial birth abortion procedure in which an infant is delivered feet first up to its neck and then a sharp object inserted into the mother's womb and used to pierce the child's brain, causing death. Abortion supporters gathered on Capitol Hill earlier in the day to defend the practice while pro-lifers rallied to support the ban.

NARAL: Pro-Choice America (NARAL:PCA), the group formerly known as the National Abortion and Reproductive Rights Action League, held a Capitol Hill "press briefing" to discuss their opposition to the ban. Only after the media had arrived, set up equipment and the event had begun did representatives of the group tell reporters that the event was "on background," meaning the speakers could not be quoted directly.

Jenny Backus, who described herself as a consultant to NARAL:PCA on media, said that the group's president, Kate Michelman, would be available for on the record comments, but Michelman did not arrive before the event concluded.

NARAL:PCA representatives admitted that they do not have the votes to block passage of the legislation known as the "Partial Birth Abortion Ban Act of 2003," (S. 3).

They believe their more likely avenue of recourse against the legislation - which has been passed by the House and which President Bush has promised to sign into law - is to challenge it in the courts.

Opponents Claim Ban Would Cause 'Undue Burden' on Women

NARAL:PCA representatives also argue that the ban, sponsored by Sen. Rick Santorum (R-Pa.), would cause an "undue burden" on a woman's ability to procure an abortion. Similar arguments contributed to the Supreme Court's decision to overturn the Nebraska law.

One NARAL:PCA representative present at the press briefing Monday claimed that the Nebraska law, like the Santorum proposal, would have prohibited "virtually all the most common second trimester abortion procedures."

But Santorum believes the explicit definition of partial birth abortion in his bill will overcome the objections of even pro-abortion justices on the court.

"We have sufficiently tightened the definition, I believe, so as not to include abortions where the baby in the uterus is, frankly, pulled apart," Santorum said. "Clearly when - under this legislation, the baby has to be delivered up to the navel and still be alive - you're not talking about these cases anymore."

The bill specifically defines a partial birth abortion as a procedure in which "the person performing the abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus," and the person "performs the overt act, other than completion of delivery, that kills the partially delivered living fetus."

No 'Health of the Mother' Exception

The Supreme Court decision overturning a Nebraska law similar to the Santorum proposal is the basis for their optimism. The High Court overturned the Nebraska partial birth abortion ban on two grounds. The first: because it did not contain a so-called "health exception."

In its Roe v. Wade decision, the Supreme Court ruled that, after a fetus reaches the stage where it could survive outside the womb (referred to in the ruling as "viability"), states can prohibit or restrict abortion, "except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

The court has since held that any abortion restriction that does not contain a "health of the mother" exception is illegal.

But Santorum said no health exception is needed under the restriction imposed by the court.

"There is no reason, for the health of the mother, to do this procedure," he argued. "And so, while Roe requires a 'health of the mother' exception, it doesn't if there is no health consequence."

Santorum's assessment is supported by Dr. Curtis Cook, associate director of maternal-fetal medicine at Spectrum Health in Grand Rapids, Mich.

"There's no health benefit to the mother whatsoever [and] certainly no health benefit to the fetus," Cook, who is also an assistant professor of medicine at the University of Michigan, explained. "There is even evidence that would support that this may indeed be a more dangerous procedure for the mother than other, previously existing procedures."

Former Surgeon General C. Everett Koop came to a similar conclusion nearly six years ago.

"Partial birth abortion is never medically necessary to protect a mother's health or fertility," Koop said on May 13, 1997. "On the contrary, this procedure can cause a serious threat to both."

Pro-Life Lawmakers Accused of 'Deceptive and Inflammatory Rhetoric'

In a written statement, Michelman accused pro-life lawmakers of using "deceptive and inflammatory rhetoric" in their attempts to ban partial birth abortions.

"[That] is a political, not medical term, coined by anti-choice forces," she wrote. "Clearly, when the American public understands the extreme, deceptive and vague nature of these proposals, they reject them."

But Santorum intimated that it is pro-abortion activists who are being deceptive when, for instance, they talk about Roe v. Wade and subsequent abortion rulings by the court protecting women's "health."

The Pennsylvania Republican referred specifically to the Doe v. Bolton case, in which the Supreme Court provided specific examples of "health" factors that would provide an exception to the government's right to ban abortions of "viable" fetuses.

"We agree...that the medical judgment may be exercised in the light of all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the well-being of the patient," the court wrote. "All these factors may relate to health."

Later in the Doe opinion, the court stated that the term "health" should always be interpreted in "its broadest medical context."

"For example, rejected applicants under the Georgia statute are required to endure the discomforts of pregnancy; to incur the pain, higher mortality rate, and aftereffects of childbirth; to abandon educational plans; to sustain loss of income; to forgo the satisfactions of careers; to further tax mental and physical health in providing child care; and, in some cases," the court held, "to bear the lifelong stigma of unwed motherhood, a badge which may haunt, if not deter, later legitimate family relationships."

Those findings, Santorum concluded, can only be interpreted in one way.

"There are simply no restrictions on the 'right' to an abortion. Abortion can be done at any time up until the moment of separation," he explained. "We still keep hearing that abortions are legal in the first trimester and less so in the second and banned, pretty-much, in the third, which is just simply not the case."

Santorum hopes to change that, at least with regard to what he sees as the purely elective procedure known as partial birth abortion.

E-mail a news tip to Jeff Johnson.

Send a Letter to the Editor about this article.