In a series of remarkably consistent decisions, courts have been blocking state laws that ban so-called partial-birth abortions almost as fast as the states have enacted them.
With Congress having failed twice to pass a national ban over President Clinton's veto, more than half the states (California not among them) have enacted such laws. In 18 of the 20 states whose laws have been challenged, courts either have found the laws unconstitutional or ordered the states not to enforce them until a trial is conducted.
But despite their setbacks in the courts, abortion opponents have scored a substantial public relations victory. Abortion rights advocates realize that state legislators, eager to ban partial-birth abortions, may rewrite the laws so that they pass constitutional muster.
The partial-birth debate has "made even people who consider themselves pro-choice confront aspects of abortion they haven't before," said Susan Cohen, a legislative analyst at the Alan Guttmacher Institute, a reproductive health research center that supports legal abortion.
The laws enacted in more than half the states are intended to prohibit a method of late-term abortion in which part of the fetus is pulled from the womb and into the birth canal before it is killed. The laws' supporters, including the National Conference of Catholic Bishops, have promoted the statutes as affecting only this type of abortion, which usually is performed after about 18 weeks of pregnancy.
Laws Seen as Vague
But both federal and state courts have found that the laws also might apply to other methods of abortion in the second trimester of pregnancy and even, according to some judges, to methods used in the first three months, when the majority of the 1.3 million abortions annually are performed.
Moreover, the courts have held that the laws were too vaguely worded for doctors to be clear on which abortion techniques were proscribed.
Wisconsin's law, for example, threatened doctors with life in prison, and Chief Judge Richard Posner of the U.S. 7th Circuit Court of Appeals called it "a sweeping prohibition" that might make doctors afraid to perform any abortions.
"Pregnant women in Wisconsin may find it impossible to obtain any type of abortion that might conceivably, though mistakenly, . . . be held to be a partial-birth abortion," said Posner.
The sparring over partial-birth abortion is only the latest skirmish in a 26-year war over abortion rights. In this battle, as in many others, the courts have been thrust into the role of reluctant referee.
So far only one appellate court, the U.S. 4th Circuit Court of Appeals, has suggested in a case involving Virginia's law that partial-birth abortion bans might be constitutional. Abortion rights advocates are likely to appeal to the Supreme Court as early as next year.
Despite the triumph of abortion rights advocates in most courts of law, the abortion protesters have carried the court of public opinion.
"It's been a political victory for the anti-abortion side," acknowledged Janet Benshoof, president of the Center for Reproductive Law and Policy and one of the lawyers representing doctors in several states who challenged the bans.
She believes that the late-term abortion issue has been a "partial legal victory" for the other side by making the courts examine abortion techniques and the viability of the fetus. Lost in the debate, she said, is the focus of Roe vs. Wade, the 1973 Supreme Court decision making abortion legal for "a woman and her doctor making a medical decision about her health."
The judges' opinions implicitly raised anew the moral and legal challenge at the heart of the abortion debate: how to balance the interests of the pregnant woman against those of the fetus.
In the partial-birth debate, opponents of legal abortion used a gruesome diagram--a drawing of a partly aborted fetus looking like a baby--in a massive lobbying campaign. The diagram tapped into the public's long-standing discomfort with abortions performed late in pregnancy.
According to Harris Polls in 1975 and again in 1998, nearly 70% of people oppose second-trimester abortion, in sharp contrast with the 61% in a recent New York Times poll who supported abortion in the first three months of pregnancy.
"The partial-birth debate was something where the humanity of the child was front and center," said Marty Dannenfelser, who directs government relations for the Family Research Council, a conservative group that opposes abortion.
The procedure depicted by abortion opponents in diagrams and drawings had been promoted by Dr. James McMahon of Los Angeles and Dr. Martin Haskell of Ohio as preferable after about 18 weeks of pregnancy.
These doctors found that when the fetus had attained 18 weeks or more of growth, it was sufficiently large that the most common abortion procedure--dismembering the fetus inside the womb--risked shattering fetal bones that might cut the inside of the uterus or cervix.
In the interest of the woman's safety, they preferred removing the intact fetus feet first from the womb until all that remained inside the uterus was the head, then puncturing the base of the skull.
Whatever this technique's medical merits, however, they paled beside the image of a living fetus being killed after most of it had emerged into the vagina. Abortion opponents, applying the term "partial birth" to the procedure, demanded that it be banned.
"This type of ban should be upheld even under Roe vs. Wade," said Douglas Johnson, legislative director for the National Right to Life Committee. "The [court] decision should not apply when the child is no longer in utero. . . . Location matters."
But as Posner asked: "Why does the government care whether the fetal death occurs in the vagina or in the uterus?
The state attorneys general who defended the laws in court asserted that the law was very narrow, applying to only one procedure, whose health benefits were unknown.
The crucial issue for the courts is whether the bans meet constitutional requirements for restrictions on abortion both before and after the fetus is able to live outside the mother's body. Once the fetus is viable, the states may ban abortion, although they still must allow an exception for the health of the mother, according to Roe vs. Wade. Abortion opponents strenuously resisted efforts to include any exception for the woman's health in both state and federal bans.
Before the fetus has reached the age of viability, the states may regulate abortion but not ban it, according to the Supreme Court in both Roe vs. Wade and its 1992 successor case, Casey vs. Planned Parenthood of Southeastern Pennsylvania.
Ban Stirs Much Debate
In fact, "partial-birth" abortion is not a recognized medical term. It was coined by abortion opponents to focus public attention on what they regard as the reality that a fetus, no matter how young, is no less than a young child.
Most of the new laws define a partial-birth abortion as one in which the doctor "intentionally deliver[s] into the vagina a living unborn child or a substantial portion thereof for the purpose of performing a procedure that . . . will kill the unborn child."
The courts analyzed that language and, based on medical testimony, faulted it for its vagueness. Some doctors defined "substantial" as more than 50% of the body. Others said that it meant the legs and much of the torso. At the other end of the spectrum, still others said that a leg would be enough to meet the definition.
The chief judge for the federal district court in New Jersey, Anne E. Thompson, said of New Jersey's late-term abortion ban: "The law's effect is to ban most conventional abortion procedures" throughout pregnancy.
Despite the lopsided number of adverse court decisions, the debate is far from over. Anti-abortion activists, hoping to get on the right side of the Constitution, may alter the ban's language this year to focus on procedures involving the delivery of part of the fetus into the birth canal before it is killed. And in Washington, supporters of the ban intend to try again with legislation.
To fend off more sweeping bills, some abortion rights supporters are crafting legislation to sharply limit access to post-viability abortions to cases in which the woman's own physical health otherwise would be in serious jeopardy.