A Partial Victory
A Partial Victory In strictly legislative terms, it looks as if the congressional effort to abolish the unconscionable practice of partial-birth abortion has fallen short. The House of...
...Not so, replied the nation's anesthesiologists...
...Fetal "viability," the vaguely defined point in gestation when a baby's development is sufficient to sustain medically assisted life outside the womb, became the dividing line for permissible abortion laws...
...This is an astonishing development...
...It has been a political "winner...
...During floor debate on the partial-birth ban May 15, Democratic senator Patty Murray of Washington suggested that non-emergency late-term abortions are a figment of pro-life imagination...
...By the twenty-first week of pregnancy, abortion carries a 1-in-6,000 risk of maternal mortality...
...Unfortunately, Daschle's proposal was one big gaping loophole...
...Well, partial-birth abortion is nevertheless the "only" medical intervention that can preserve the lives and future fertility of "a few hundred" women each year, President Clinton then argued as he vetoed the ban...
...They are joined in their blissful ignorance by some of the nation's elected officials...
...By allowing abortion in lieu of delivery in all such cases, Daschle would have prevented abortion in almost none of them...
...Indeed, many of them are eager to admit that the questioned surgery is "horrific" and "abhorrent...
...When the question of partial-birth abortion was first raised, in 1995, the automatic response of professional abortion advocates was denial...
...On behalf of a larger group of pro-choice senators, 36 in all, Democratic minority leader Tom Daschle proposed a more interesting alternative...
...Before viability, a state may not impose an "undue burden" on the exercise of a woman's right to abortion...
...It was not true, said Kate Michelman of the National Abortion and Reproductive Rights Action League, that living infants were being extracted from their mothers' wombs, feet first, up to the neck, and then killed by forced removal of their brains...
...This, on the surface at least, was a significant restriction of the health exception...
...And that partial-birth abortion is not a ther-apeutically preferable surgery for any woman in any situation, but is instead, in the crushing recent judgment of the American Medical Association, "a procedure we all agree is not good medicine...
...Once more, he will probably be sustained...
...But Congress cannot entirely prohibit that horror, the Senate's pro-choice purists maintain, without fundamentally undermining the legal standing of abortion generally...
...But the testimony of Dr...
...This is fantasy, of course...
...The two measures will be merged into one, and President Clinton will then veto it—for the second time in two years...
...And those abortions, as a whole, are protected from significant legal restriction by existing Supreme Court jurisprudence...
...Revealingly, Murray and 27 other senators felt the need to cloak their defense of the status quo with advocacy of a Post-Viability Abortion Restriction Act, a federal version of those 41 toothless state statutes governing late-term procedures...
...After viability, a state may outlaw abortion— provided it continues to make exceptions for life- and health-endangering circumstances...
...in every case, the babies had long since been dispatched, in utero, by deliberate overdose of anesthesia...
...The partial-birth abortion ban is a ban on partial-birth abortions alone...
...In practice, the court established a regime of abortion on demand through all three trimesters...
...But the health exception remains so broad as to allow any abortion sought by any woman for any reason...
...In the third trimester, the court theoretically allowed states to restrict or even proscribe abortion so long as exceptions were granted for cases involving a mother's life or health...
...In fact, late-term abortions like these are themselves a positive danger to health...
...That would, for the first time, actually protect an entire class of unborn children...
...By the twenty-third and twenty-fourth week, incidentally, between a quarter and a third of all prematurely delivered infants survive—and the survival rate rapidly approaches 80-plus percent thereafter...
...Childbirth is more than two times safer...
...Which ones...
...David Tell, for the Editors...
...Most Americans appear to have no idea what our abortion law really is and what sort of surgical procedures it really protects...
...And that the vast majority of them are purely elective, performed in the fifth or sixth month of pregnancy, with no maternal-health or fertility complications involved...
...There are pro-life stalwarts who believe a more rigorous, no-health-exception version of Tom Daschle's post-viability ban is an attractive idea...
...The issue has had an invaluable effect on public understanding...
...Incremental steps are needed for purposes of public persuasion...
...The all-out Human Life Amendment to the Constitution hasn't anywhere near the popular support it would need to pass Congress and be ratified by the states...
...It means that the argument against partial-birth abortion has already succeeded beyond the pro-life movement's fondest dreams...
...Will any of these four, or any of 32 just-as-obstinately pro-choice Senate Democrats, have a change of mind...
...The trimester system was formally abandoned, in favor of a two-stage legal test...
...It would also invite a serious constitutional challenge, which would be a good thing if it prompted reconsideration of the fundamentally flawed Roe v Wade...
...So how best to limit those abortions, which has always been the central question...
...And, as it happens, very few of the 36 senators who voted "no" on the partial-birth ban actually bother to defend the procedure...
...And yet nationwide, every year, there are about 15,000 abortions performed on women 20 or more weeks pregnant, most of them for purposes having nothing to do with "health" as that word is commonly understood...
...How could they...
...A vacuum tube was not the murder instrument in these abortions, she and others claimed...
...Martin Haskell, the nation's leading partial-birth abortionist, soon made clear that at least two-thirds of his patients' children were still alive—and moving on the operating table—until he punctured their skulls with scissors and inserted a suction catheter through the wound...
...Since that first veto, it has become clear that there are many thousands of such abortions each year, not just a mere "few hundred...
...In a series of post-Roe cases, the Supreme Court has judged various peripheral abortion restrictions constitutional at the state level: waiting periods, informed consent rules, required fetal-viability tests...
...That argument has succeeded so completely, in fact, that it has exhausted its immediate context and metamorphosed into something vastly larger...
...In 1992, deciding Planned Parenthood v. Casey, the justices slightly altered this regime...
...Four pro-choice Republicans—John Chafee of Rhode Island, Jim Jeffords of Vermont, and Susan Collins and Olympia Snowe of Maine—are the margin of difference...
...But with a viable fetus, why not simply deliver the baby (and make every effort to save it...
...fetal dismemberment is the most common practice...
...For show, at least, we are all (sort of) pro-life now...
...Those would be a nice addition to federal law, but they would still be peripheral...
...The rest of those abortions are equally hideous...
...It would leave other abortion procedures available—through the ninth month of gestation—to any woman who might want one, for any reason...
...But "health" was defined to include all factors "relevant to the well-being of the patient": "physical, emotional, psychological, familial, and the woman's age...
...The entire abortion status quo—as both political issue and social phenomenon—is finally very much in play, at long last center stage, nearly 25 years after Roe v. Wade...
...This despite the fact that the ban the House and Senate have approved contains no health exception whatsoever, which both Daschle and the bill's opponents always argued was unconstitutional...
...In the second trimester, the court permitted only such state regulation of abortion as would be reasonably related to maternal health...
...So the ban wouldn't really abridge the Roe-Casey abortion right at all...
...Though the partial-birth ban gained several votes from last year, in the Senate it remains three votes short of the two-thirds majority necessary for overriding the veto...
...Unlike most of his party's caucus, however, Daschle wound up voting for the partial-birth ban to symbolize his disgust with the procedure...
...The Senate approved a nearly identical bill on May 20...
...We are not sure what precisely the pro-life movement should do next to build on its stunning success with partial-birth abortion...
...They have already passed up every chance...
...But there are maybe 5,000 partial-birth surgeries in the United States each year, representing less than half a percent of the nation's 1.4 million abortions...
...In Roe and the companion case of Doe v Bolton, the Supreme Court discovered an absolute right to abortion during the first trimester of pregnancy...
...The law in 41 states now purports to ban post-viability or third-trimester abortions...
...Indeed, she said, the Supreme Court has effectively "prohibited" such abortions...
...We do know the pro-life movement must consider its next strategic moves with care—and must continue to join political astuteness to moral principle...
...The House of Representatives overwhelmingly passed such a ban on March 20...
...We think they're wrong...
...True, "termination of pregnancy" is "medically indicated" in an array of circumstances implicating a mother's health...
...In today's United States, she went on, it is "illegal" for a "healthy woman," post-viability, "to terminate a healthy pregnancy simply because she no longer wants to be a mother...
...His bill, the Comprehensive Abortion Ban Act of 1997, would have banned every abortion of a viable fetus unless "termination of the pregnancy" was "medically indicated" to prevent a threat to the mother's life or a "grievous injury" to her "physical"—not mental— health...
...Well, insisted Planned Parenthood, at least the anesthesia prevents the fetus from feeling any pain during all this ghoulishness...
...No one, in other words, can continue plausibly to suggest that partial-birth abortion, per se, is even remotely defensible...
...Which points up the biggest limitation of partial-birth abortion as a pro-life crusade...
Vol. 2 • June 1997 • No. 37
