‘Partial-Birth’ Abortion Ban Won’t Be Easy to Deliver

George W. Bush minced no words during the presidential campaign when discussing the controversial procedure its foes call “partial-birth” abortion. Send him a bill banning it, Bush declared, and he would “sign it into law.”

Much to the dismay of antiabortion advocates, getting that bill to Bush is proving no easy task.

The activists admit they have been stymied by a Supreme Court decision last year that struck down a Nebraska law prohibiting partial-birth abortions. And within their ranks, a heated debate is underway over the best strategy to pursue in light of the court’s ruling.

“The Supreme Court’s decision pretty well closes the door to anything as far as trying to restrict any sort of abortion procedure,” said Sen. Rick Santorum, (R-Pa.), who has sponsored the ban in the past. Santorum and his allies are especially frustrated because with Republicans still in control of Congress, Bush’s election had removed what once loomed as the ban’s major obstacle: Twice in recent years Congress passed bills prohibiting partial-birth abortion, only to see President Clinton veto them.

The activists remain reluctant to give up on the ban. “It’s not clear how we will proceed, but I do intend to introduce legislation that bans partial-birth abortion at some point,” said Rep. Steve Chabot (R-Ohio), who chairs the House subcommittee with jurisdiction over abortion issues.

In the meantime, there is a flurry of activity around more incremental antiabortion legislation and policies. Among the items on the near-term agenda are persuading the Bush administration to reconsider the Food and Drug Administration’s approval of the early-abortion drug RU-486 and to reverse Clinton’s decision to allow the National Institutes of Health to do research on embryonic stem cells. On the legislative front, a bill expected to be offered soon would make it a separate crime if, in the course of committing a federal crime against a pregnant woman, a fetus dies or is injured. Another possible bill would prohibit a person from taking a teenager across state lines to avoid the parental consent many states require for an abortion.

Plotting Strategy

The dilemma posed by the Supreme Court’s decision underscores a challenge antiabortion activists frequently face. Crafting a bill that satisfies existing legal constraints would have to be worded in a way that allows some abortions that the movement wants outlawed. Such a result is unacceptable to many activists.

Rep. Henry J. Hyde, (R-Ill.), an antiabortion leader on Capitol Hill, said he and others are uncertain how to proceed against the partial-birth procedure. “We don’t want to go through the travail of passing the ban again only to have the Supreme Court strike it down . . . but there are a lot of thoughtful people working on it,” he said.

One of those working on a legislative strategy is James Bopp, a lawyer who represents the National Right to Life Committee.

“We question the validity of the Supreme Court’s decision from a legal standpoint but we have to be respectful of the court,” Bopp said. “So there are several different ideas being considered on how a bill can be drafted that would both be a bona fide ban on partial-birth abortion and at the same time address the court’s decision . . . it’s a dilemma.”

Key Nebraska Ruling

At the heart of the dilemma is last June’s 5-4 ruling that overturned the Nebraska ban. The court followed the precedent set in 1973’s seminal Roe vs. Wade decision that said any abortion ban must include an exception to allow the procedure if it is best for a woman’s health. The justices in the majority also said Nebraska’s ban was unconstitutionally vague because, as worded, it would be difficult for a doctor to be sure he was performing the proscribed procedure or another, more common, type of abortion.

With their decision, the justices invalidated bans similar to Nebraska’s in about two dozen states.

Partial-birth abortion is one of the two medical procedures generally used to end pregnancies during the second trimester (90% of the nation’s abortions occur in the first trimester).

In the more common of the procedures--known as D&E;, for dilation and evacuation--the fetus is removed in parts. In the procedure known as D&X;, for dilation and extraction, the umbilical cord is cut and the fetus removed intact.

Medical experts say intact removal is often safer for the mother because it reduces bleeding. But foes call the procedure partial-birth abortion and during previous congressional debates effectively argued it amounts to killing a live baby.

“The partial-birth abortion issue was so powerful because pro-lifers could actually put a face on abortion,” said Marshall Wittman, a senior fellow at the Hudson Institute, a conservative think tank.

As antiabortion activists plot strategy to overcome the Supreme Court ruling, one option being considered is to produce a new bill that includes a health exemption for the mother, but narrows the definition of when it applies.

Antiabortion activists long have argued that the health exemption has been too broadly defined, and some see revamping the partial-birth abortion bill as a chance to get the court to accept a narrower definition. Currently, the court defines health as “all factors--physical, emotional, psychological, familial and the woman’s age--relevant to the well-being of the patient.”

But narrowing the definition of health would fail to satisfy many powerful antiabortion activists. For instance, Douglas Johnson, director of federal legislation for National Right to Life, said his organization would oppose a ban that included a health exception, no matter how narrowly worded.

Another suggestion is to write a bill that responds to one of the legal objections--such as the concern that the description of the partial-birth procedure was too vague--and see if that is enough to change the mind of at least one justice.

But finding such precise language not only could prove difficult, it would leave unresolved the debate over allowing any sort of health exemption.

Under still another scenario that some antiabortion advocates are leaning toward, Congress would pass a bill largely identical to the previous measure approved, but with a contingency clause saying it would not take effect until the Supreme Court reversed itself on partial-birth abortion. Santorum is among those touting this approach, though some legal experts question whether such a contingency clause would be valid.

For Bush, political analysts see the quandary confronting antiabortion activists as a mixed blessing. It relieves some pressure on him, they say, not to have the partial-birth abortion issue making its way through Congress at the same time as other parts of his agenda.

“The White House has plenty on its table with taxes and education,” said Washington-based political analyst Stuart Rothenberg. “If [Bush] added abortion now, there would be a lot of yelling and screaming and he’d have a hard time talking about taxes . . . it would be playing with nitroglycerin.”

But the lack of movement on a partial-birth abortion ban could intensify the pressure on Bush if a Supreme Court opening occurs during his administration. Conservatives want to make sure he avoids making what they view as his father’s mistake of selecting a seemingly conservative justice, David H. Souter, only to have him turn out to be an abortion rights supporter.

“The difficulty of getting the partial-birth abortion ban magnifies the importance” of a Supreme Court selection, said Wittman of the Hudson Institute.