House Considers Criminalizing Abortion Practices

Despite a Supreme Court ruling that a similarly vaguely worded ban on abortion practices was unconstitutional, the Republican-majority House is now considering a bill that would make it a crime for physicians to perform common abortion procedures.

Priscilla Smith

(WOMENSENEWS)-Anti-choice lawmakers in the House have introduced a measure to ban what they call “partial-birth abortions,” flouting a Supreme Court ruling that found a similar Nebraska law unconstitutional.

The bill criminalizes abortion with language so vague that it could extend to first trimester abortion practices as well as second trimester abortion procedures, experts say. Ohio Republican Steve Chabot introduced the bill, calling for prison terms of up to two years for physicians who perform abortions deemed to be banned by the law and giving the husband or parents of the pregnant woman the right to sue the physician for pain and suffering.Supporters of the bill claim to be after one procedure, but their public outline of that procedure differs greatly from the language contained within the bill. In a legally irrelevant, non-binding statement attached to the bill, the authors describe a single medical procedure known as intact D and X. The D and X (dilation and extraction) abortion technique is an extension of the D and E (dilation and evacuation) procedure which aborts the fetus intact.

But the actual language of the bill is so broad that it would likely ban a number of common abortion procedures. Pro-choice advocates call this a deliberate subterfuge bent on confusing an already complicated issue and rolling back reproductive rights.

“Reintroducing the ban is a direct affront to the Supreme Court, the Constitution and women's health in every respect,” said Priscilla Smith, acting director of the domestic program for the Center for Reproductive Law and Policy and a plaintiff's attorney in Stenberg v. Carhart, the Supreme Court case that voided the Nebraska ban.

The bill will likely not pass the Democrat-controlled Senate, but Congressional sponsors hope to spur anti-abortion voters to elect an anti-abortion majority to the Senate this fall. The bill could quickly be reintroduced, passed and sent on to the antiabortion president's desk for almost certain signing.

In January, Bush lauded anti-abortion demonstrators, saying “unborn children should be welcomed in life and protected in law.”

Passing the bill now, even though it will not make it through the Senate, “is an effort to show that Congress is moving on issues that are important to the anti-abortion voters,” said Heather Boonstra, senior public policy associate with The Alan Guttmacher Institute.

Twice before, in 1995 and 1997, Congress approved “partial-birth abortion” bans that would have made common abortion practices illegal. President Clinton vetoed both. The Senate fell three votes short of overriding the 1997 veto. In 1999, Congress passed a third, similar ban but did not send it to Clinton for signature.

Proposed Bill Contains Clauses Found Unconstitutional by Supreme Court

Even if the bill makes it into law, Supreme Court precedents faulting similar bans create obstacles to the implementation of the ban.

The current proposed legislation retains two measures that the Supreme Court, in a 5-4 decision, found unconstitutional in Stenberg v. Carhart. First, the bill's definition of “partial-birth abortion” could be applied to a variety of procedures including dilation and evacuation, or D and E, a common method used in the initial months of a pregnancy.

Justice Stephen G. Breyer, writing about the similar Nebraska law contested in the Carhart case, said that “its language makes clear that it also covers a much broader category of procedures,” and not just the procedure supporters claimed the ban targeted.

Second, the new legislation allows no exception to protect the mother's health although it makes an exception when the mother's life is at risk. The Carhart decision reaffirmed that any abortion restriction must include an exception to protect women's health.

The risk that her physician could face prosecution, combined with interference in her ability to make an informed health choice, placed “an undue burden upon a woman's right to make an abortion decision,” the Supreme Court ruled.

Sidestepping the court, this proposed bill claims that the abortion practices it would criminalize are irrelevant to the issue the pregnant woman's health “because the facts indicate” that the banned procedures are “never necessary to preserve the health of a woman.” It also claims that Congress is entitled to reach its own factual findings regardless of contrary factual findings by the Supreme Court.

Similar bans have been introduced in 31 states and challenged in 21 of those states, according to the Reproductive Freedom Project of the American Civil Liberties Union. In the 21 states where it has been challenged, the legislation has been blocked in 20. While bans remain unchallenged in 10 states, according to the ACLU, the Carhart decision renders any remaining laws unenforceable.

But antiabortion activists hope that the current anti-abortion administration will have a chance to choose the next Supreme Court justice and tip the balance of the court.

“If they can get a court to say it is okay to ban a procedure because they think it is immoral,” said Priscilla Smith of the Center for Reproductive Law and Policy, “then they have made a significant inroad into Roe.” In a 1973 decision known as Roe v. Wade, the Supreme Court legalized abortion.

A Term Referring to Nothing in Specific Could Mean Everything

The issue of “partial-birth abortions”-a term which does not correlate to any existing medical procedure-has been the flash point in a controversy riddled with legal and medical arguments.

In a letter circulated to House members, urging them to support the bill, the National Right to Life Committee wrote, “It is well documented that partial-birth abortions are performed thousands of times annually, and that the vast majority are performed on healthy babies of healthy mothers during the fifth and sixth months of pregnancy. (Some are performed at even later points in the pre-natal period and not only in circumstances involving problems with maternal or fetal health.)”

Opponents of the House bill state that the National Right to Life Committee coined the phrase to inflame public sentiment in favor of restricting abortion by feeding fears that abortions frequently take place after the fetus is able to survive outside the uterus

These types of abortion bans are part of a three-pronged attack by the anti-abortion movement: elevating the legal status of the fetus, chipping away at abortion rights through incremental restrictions and disguising restrictions as protections for women's health, say the National Abortion and Reproductive Rights Action League. A study by the organization listed 301 anti-abortion measures enacted in the United States from 1995 to 2001, 39 in 2001 alone.

The anti-abortion movement publicly asserts that the ban targets a single procedure known as intact D and X, and is not aimed at other abortion practices.

These assurances are suspect, said Smith, and the language of the bill differs from their public statements.

“The entire campaign around this issue has been designed to propagate this myth,” Smith said.

The bill argues that abortion is infanticide once the fetus has entered the birth canal regardless of whether it can survive outside the uterus.

Post-viability abortions are already widely prohibited except to preserve the life or health of the mother. The Supreme Court ruled in Roe v. Wade that states could restrict post-viability abortions and 41 states have adopted post-viability statutes limiting or eliminating them, according to a report by the National Abortion Rights Action League. While medical opinion differs, viability is generally understood to occur from 24 weeks to 28 weeks. The law leaves viability to the discretion of the physician.

Only 1.4 percent of abortions are performed after 21 weeks, according to the Centers for Disease Control and Prevention. In 1998, the latest year for which statistics are available, the CDC found that, out of the 884,273 legal induced abortions performed that year, 56 percent occurred in the first eight weeks, 86 percent in the first 13 weeks, and 4 percent between 16 weeks and 20 weeks.

Chabot is an active anti-choice member of the House, regularly introducing anti-abortion legislation. He stands for re-election this November.

Asjylyn Loder is a freelance writer in New York City.

For more information:

Also see Women's Enews, April 1, 2001:
“Confusion Surrounds ‘Partial Birth Abortion'”:

National Right to Life
Abortion: Some Medical Facts:

ACLU and Reproductive Freedom
“‘Partial-Birth Abortion' Bans: Myths and Facts: