The Senate on Tuesday handed a long-awaited victory to the antiabortion movement, giving congressional approval to a bill that would impose the first federal ban on an abortion procedure in 30 years.
The Senate voted 64 to 34 for a bill that prohibits a controversial procedure that critics call "partial-birth" abortion, sending the measure to President Bush for his promised signature.
But the victory may be short-lived. The issue will soon go to the courts, where abortion-rights advocates are poised to challenge the constitutionality of the measure as soon as Bush signs it into law. Critics of the ban said they were confident the measure would be struck down because it did not include an exception for cases in which a woman's health is at risk if the procedure was not used.
"For the first time in history, Congress is banning a medical procedure that is considered medically necessary by physicians," said Sen. Barbara Boxer (D-Calif.), who led the fight against the bill. "This is a radical, radical thing that is about to happen."
Proponents of the bill said it was carefully crafted to avoid the constitutional pitfalls of a Nebraska law, designed to ban the same procedure that the Supreme Court voted 5 to 4 to overturn in 2000. But even some antiabortion activists said it might take a change in the Supreme Court lineup -- or a conversion by a sitting justice -- for the bill to be upheld.
"We hope that by the time this bill gets to the Supreme Court, there will be a shift from the extreme and inhumane position" expressed in the 2000 opinion, said Douglas Johnson, legislative director of the National Right to Life Committee.
Although congressional action may not be the final word on the issue, the Senate vote was applauded as a political triumph by antiabortion activists, who have made the measure a crucial test of their strength in Congress. It is the clearest evidence to date of the difference it makes to antiabortion forces to have Republicans in control of both Congress and the White House. Similar legislation was passed in both 1996 and 1997, but was vetoed each time by President Clinton.
With his signature on the bill, Bush will make good on a promise to a core Republican constituency just as he heads into his 2004 reelection campaign.
"This is very important legislation that will end an abhorrent practice and continue to build a culture of life in America," Bush said in a statement issued in Singapore. "I look forward to signing it into law."
As a practical matter, the law likely will not take effect any time soon. Legal experts have said it could be three years before the court challenges reach a conclusion; in the meantime, the law may be blocked from taking effect.
If upheld in court, the law will be a legislative landmark in the long history of congressional debate about how far it can go in restricting abortion under the Supreme Court's 1973 Roe vs. Wade ruling, which established, under the constitutional right to privacy, a woman's right to have an abortion before a fetus can live on its own. While Congress has passed many measures restricting federal funding for abortion, it has never criminalized an established abortion procedure.
At issue is the procedure called partial-birth abortion because it involves partially removing an intact fetus from the womb before it is destroyed. Typically, before the fetus' head emerges, scissors are used to penetrate its skull and brain matter is removed. The procedure, called dilation and extraction by medical practitioners, is usually performed during the second trimester of pregnancy; the vast majority of abortions are performed during the first three months.
There is some dispute about the frequency of such procedures. The Alan Guttmacher Institute, a research group that supports abortion rights, estimated there were about 2,200 dilation-and-extraction abortions in 2000, up from 363 in 1996. Abortion opponents said that figure was too low. But in either case, it likely would be just a fraction of the 1.3 million abortions performed nationally in 2000, the latest year for which figures are available.
Under the bill approved by Congress, doctors would face fines and up to two years in prison for knowingly performing such an abortion. The authors of the legislation included congressional "findings of fact" that suggest the procedure is never medically necessary.
The House approved the bill about three weeks ago, after House and Senate negotiators ironed out minor differences between versions of the bill passed by the two chambers earlier this year.
The Senate debate could be the last chapter of a legislative saga for the bill, which first became an issue in Congress in 1995. With a sense of historical moment, the concluding Senate debate was punctuated with passionate appeals from both sides, as it had every time the issue came before Congress.
Proponents of the ban dramatized their arguments by showing graphic photographs of fetuses along with gruesome descriptions of the procedure. Opponents of the bill offered up the emotional stories of pregnant women who submitted to such abortions rather than face life-threatening risks for delivery or give birth to severely deformed children.
The debate revealed the deep chasm between two sides on an issue that taps deeply into religious convictions and concerns about the nature of American culture.
Sen. Rick Santorum (R-Pa.), the leading proponent of the bill, said casual acceptance of this procedure had coarsened the morals of the entire society.
"It dulls our senses," said Santorum, standing on the Senate floor in front of a drawing of a fetus. "It has a corrupting effect not just in how we treat the little one here, but on how we treat each other."
Supporters of the ban said the procedure was outside the medical mainstream, performed only to make an abortion go more quickly, not more safely.
"It is a fringe procedure," said Senate Majority Leader Bill Frist (R-Tenn.), who is a surgeon. "The sole purpose of partial-birth abortion is to deliver a dead baby. It is not, as some insist, to protect the life of the mother."
But critics of the bill noted that the American College of Obstetricians and Gynecologists also opposed the ban, in part because its members believed the legislation was so broadly written that it would outlaw a wide range of common abortion procedures, not just dilation and extraction.
The critics also argued that it trampled on a woman's constitutional right to privacy and injected the government into decisions they said should be left to a woman and her doctor.
"What kind of a country would say to half of the population, 'We don't trust you'?" said Boxer. "We think you would choose murder."
While the Senate's vote ended the legislative process for now, the legal and political ramifications are expected to continue to ripple for years to come.
Three court challenges are being prepared by different abortion-rights advocates.
Because many legal experts have said there is a good chance the law eventually will be found unconstitutional, critics charged that the bill was pushed simply to keep the issue alive to mobilize antiabortion activists.
"This is clearly a political bill designed to fan the flames," said Sen. Dianne Feinstein (D-Calif.), who, like Boxer, voted against the bill.
Indeed, proponents of the ban have said one political side-benefit to the prolonged debate on the issue has been to encourage the public to think about the human fetus as a living being.
"As this debate has gone on and on, we have found the American public has shifted," said Sen. Sam Brownback (R-Kan.). "They are recognizing that this is a child that has rights and beauty."
But some analysts have argued that the long-running debate, by focusing on banning only one kind of abortion, may have hurt rather than helped the broader antiabortion cause.
"They indisputably have succeeded in getting the message that this particular method of late-term abortion is extremely unpalatable," said David J. Garrow, a historian at Emory University in Atlanta who has studied abortion law. "But in so emphasizing how nasty and unpleasant late-term abortions are, I think the antiabortion forces have unintentionally sent a very powerful, though silent, message that early-term abortions ... are decisively less problematic."