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Partial-Birth Abortion Ban Act

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George W. Bush signing the Partial-Birth Abortion Ban Act of 2003, surrounded by members of Congress

The Partial-Birth Abortion Ban Act (Public Law 108-105, HR 760, S 3, 18 U.S. Code 1531)[1] (or "PBA Ban") is a United States law prohibiting a form of late-term abortion that the Act calls partial-birth abortion. The U.S. Supreme Court has ruled that the term "partial-birth abortion" in the act pertains to a procedure that is sometimes called "intact dilation and extraction" by the medical community.[2] Under this law, "Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both."

The bill passed both chambers of Congress: 281–142 in the House of Representatives on October 2, 2003,[3] and 64–34 in the Senate on October 21, 2003,[4] and was signed into law by President George W. Bush on November 5, 2003. The law has been upheld by the Supreme Court in Gonzales v. Carhart.

This statute deals with a method of abortion in the United States usually used in the second trimester,[5] from 18 to 26 weeks, some of which occur before and some of which occur after viability. The law itself contains no reference to gestational age or viability. The present statute is directed only at a method of abortion, rather than at preventing any woman from obtaining an abortion.[6] While there is an exemption if a woman's life is at risk, objections to this statute are primarily because there is no exemption if the health of a woman is at risk.[7] Health is one of several reasons why women have chosen to get second trimester abortions, and then this particular procedure has been chosen for additional reasons.

Findings

The Congress finds and declares the following

(1) A moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion — an abortion in which a physician delivers an unborn child's body until only the head remains inside the womb, punctures the back of the child's skull with a sharp instrument, and sucks the child's brains out before completing delivery of the dead infant — is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.

(2) Rather than being an abortion procedure that is embraced by the medical community, particularly among physicians who routinely perform other abortion procedures, partial-birth abortion remains a disfavored procedure that is not only unnecessary to preserve the health of the mother, but in fact poses serious risks to the long-term health of women and in some circumstances, their lives. As a result, at least 27 States banned the procedure as did the United States Congress which voted to ban the procedure during the 104th, 105th, and 106th Congresses.

Life of the woman

Despite its finding that "partial-birth abortion … is … unnecessary to preserve the health of the mother", the statute includes the following provision:

This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

This may have been a precaution in case the courts reject Congress's findings of fact. As Hadley Arkes commented, in an editorial in the National Review, "[t]hat provision went even further than the law was obliged to go, for as the American Medical Association testified during the hearings, a partial-birth abortion bore no relevance to any measure needed to advance the health of any woman."[8] Citing the Supreme Court case of Doe v. Bolton, some pro-life supporters assert that use of the word "health" would render any legal restriction meaningless because of the broad and vague interpretation of "health."[citation needed]

"Partial-birth abortion" defined by law

Since it was first coined in 1995 by pro-life congressman Charles T. Canady, the term "partial birth abortion" has been used in numerous state and federal bills and laws, although the legal definition of the term is not always the same. In the 2000 Supreme Court case of Stenberg v. Carhart, a Nebraska law banning "partial-birth abortion" was ruled unconstitutional, in part because the language defining "partial-birth abortion" was deemed vague.[9] In 2006, the Supreme Court in Gonzales v. Carhart found that the 2003 act "departs in material ways" from the Nebraska law and that it pertains only to a specific abortion procedure, intact dilation and extraction.[2] Some commentators have noted that the Partial-Birth Abortion Ban Act's language was carefully crafted to take into account previous rulings.[10] The Partial-Birth Abortion Ban Act defines "partial-birth abortion" as follows:

An abortion in which the person performing the abortion, deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and performs the overt act, other than completion of delivery, that kills the partially delivered living fetus. (18 U.S. Code 1531)

Congressional vote results

The only substantive difference between the House and Senate versions was the Harkin Amendment expressing support for Roe v. Wade.[11] A House-Senate conference committee deleted the Harkin Amendment, which therefore is absent from the final legislation.[1]

In the House, the final legislation was supported by 218 Republicans and 63 Democrats. It was opposed by 4 Republicans, 137 Democrats, and 1 independent. Twelve members were absent, 7 Republicans and 5 Democrats.[3] In the Senate the bill was supported by 47 Republicans and 17 Democrats. It was opposed by 3 Republicans, 30 Democrats, and 1 independent.[4] Two Senators were absent, Sen. Kay Bailey Hutchison (R-Tx.), a supporter of the bill, and Sen. John Edwards (D-NC), an opponent of the bill. The bill was then signed by President George W. Bush to become law.

Judicial history of the law

Congress first passed similar laws banning "partial-birth abortion" in December, 1995, and again October, 1997, but they were vetoed by President Clinton.[12] The Partial-Birth Abortion Ban Act was signed into law by President George W. Bush on November 5 2003, and immediately challenged. Three different U.S. district courts, the Northern District of California in Planned Parenthood v. Ashcroft,[13] the Southern District of New York in National Abortion Federation v. Ashcroft,[14] and the District of Nebraska in Carhart v. Gonzales[15] declared the law unconstitutional. All three cited the law's omission of an exception for the health of the woman (as opposed to the life of the woman), and all three decisions cited precedent set by Roe v. Wade (1973) and Stenberg v. Carhart (2000). The federal government appealed the district court rulings, first bringing Carhart v. Gonzales before a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit. The panel unanimously upheld the ruling of the Nebraska court on July 8 2005.[16] Attorney General Gonzales petitioned the U.S. Supreme Court to review the Eighth Circuit decision on September 25 2005. Meanwhile, the Ninth Circuit also found the law unconstitutional,[17] as did the Second Circuit (with a dissent),[18] issuing their opinions on January 31 2006. The Supreme Court agreed to hear the Carhart case on February 21 2006,[19] and agreed to hear the companion Planned Parenthood case on June 19 2006.[20]

On April 18 2007 the Supreme Court in a 5-4 decision, Gonzales v. Carhart, held that the statute does not violate the Constitution. Justice Anthony Kennedy wrote for the majority which included Justices Samuel Alito, Clarence Thomas, Antonin Scalia, and Chief Justice John Roberts. Justice Ruth Bader Ginsburg wrote the dissent which was joined by Stephen Breyer, David Souter, and John Paul Stevens.[21].

Public opinion

See also: U.S. Polls on Abortion

A Rasmussen Reports poll 4 days after the court's decision found that 40% of respondents "knew the ruling allowed states to place some restrictions on specific abortion procedures." Of those who knew of the decision, 56% agreed with the decision and 32% were opposed.[22] An ABC poll from 2003 found that 62% of respondents thought "partial-birth abortion" should be illegal; a similar number of respondents wanted an exception "if it would prevent a serious threat to the woman's health." Additional polls from 2003 found between 47–70% in favor of banning partial-birth abortions and between 25–40% opposed.[23]

References

  1. ^ a b Partial-Birth Abortion Ban Act of 2003, Enrolled as Agreed to or Passed by Both House and Senate (HTML); * same, from the U.S. Government Printing Office (PDF)
  2. ^ a b Gonzales v. Carhart, 550 U.S. ____ (2007). Findlaw.com. Retrieved 2007-04-19. (“The medical community has not reached unanimity on the appropriate name for this D&E variation. It has been referred to as 'intact D&E,' 'dilation and extraction' (D&X), and 'intact D&X' ....For discussion purposes this D&E variation will be referred to as intact D&E....A straightforward reading of the Act's text demonstrates its purpose and the scope of its provisions: It regulates and proscribes, with exceptions or qualifications to be discussed, performing the intact D&E procedure.”)
  3. ^ a b House Roll Call No. 530, (2003-10-2).
  4. ^ a b Senate Roll Call No. 402 (2003-10-21).
  5. ^ Stenberg v. Carhart, 530 U.S. 914 (2000), in which the Court stated: "In sum, using this law some present prosecutors and future Attorneys General may choose to pursue physicians who use D&E procedures, the most commonly used method for performing previability second trimester abortions."
  6. ^ See Stenberg v. Carhart, 530 U.S. 914 (2000), in which Justice Ginsburg stated in concurrence: "As the Court observes, this law does not save any fetus from destruction, for it targets only 'a method of performing abortion.'"
  7. ^ "D&X / PBA PROCEDURES: Reactions to the 2003 federal law." ReligiousTolerance.org Retrieved April 18, 2007.
  8. ^ Hadley Arkes, Talking Partial-Birth Abortion, National Review (October 13, 2004).
  9. ^ Abortion Bans: Myths and Facts. American Civil Liberties Union. Accessed April 14, 2006.
    Stenberg v. Carhart, 530 U.S. 914 (2000)
  10. ^ "Defending the Innocent" Washington Times 2003. Retrieved May 3, 2007.
  11. ^ Senate Roll Call on Harkin Amendment.
  12. ^ http://www.npr.org/templates/story/story.php?storyId=5168163
  13. ^ Planned Parenthood v. Ashcroft, Order Granting Permanent Injunction, Findings of Fact and Conclusions of Law in Support Thereof, United States District Court for the Northern District of California (June 1, 2004)
  14. ^ National Abortion Federation v. Ashcroft, Opinion and Order, United States District Court for the Southern District of New York (August 26, 2004)
  15. ^ Carhart v. Ashcroft, Memorandum and Order, United States District Court for the District of Nebraska (September 8, 2004)
  16. ^ Gonzales v. Carhart, United States Court of Appeals for the Eighth Circuit (July 8, 2005)
  17. ^ Planned Parenthood Federation v. Gonzalez, United States Court of Appeals for the Ninth Circuit (January 31, 2006)
  18. ^ National Abortion Federation v. Gonzalez, United States Court of Appeals for the Second Circuit (January 31, 2006)
  19. ^ Supreme Court Docket, Gonzales v. Carhart (No. 05-380), providing copies of briefs, courtesy of Findlaw.com.
  20. ^ Supreme Court Docket, Gonzales v. Planned Parenthood (No. 05-1382), providing copies of briefs, courtesy of Findlaw.com.
  21. ^ Yahoo! News, 2007-04-18.
  22. ^ Most Who Know of Decision Agree With Supreme Court on Partial Birth Abortion Rasmussen Reports. April 22, 2007. Retrieved on April 26, 2007
  23. ^ Abortion and Birth Control. PollingReports.com Retrieved April 26, 2007
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