Try, Try Again
The Senate passes a partial-birth abortion ban. The president says he'll sign it. Will it hold up before the Court?
11:00 PM, Mar 13, 2003 • By RACHEL DICARLO
YESTERDAY, with 64 Senators supporting it, the Senate approved a bill that would ban partial-birth abortion in all 50 states. Congress passed similar bans in 1995 and 1999 that were vetoed by Bill Clinton, but George W. Bush has said he will sign the ban into law. But can it survive Supreme Court scrutiny?
The new bill is identical to one passed by the House last July but then smothered by the Democratic Senate. That bill featured two changes that address the Supreme Court's ruling in Stenberg v. Carhart, which overturned a Nebraska law banning the procedure.
The first change is the bill's definition of "partial-birth abortion." The majority opinion in Stenberg found Nebraska's definition of the term too vague and ruled that it could be interpreted to cover not only abortions in which the baby is delivered alive before being killed, but also the "dilation and evacuation" method, in which an unborn baby is dismembered while still inside the mother.
To eliminate confusion the new bill states: "The person performing the abortion deliberately and intentionally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside of the mother, or, in the case of breech delivery, any part of the fetal trunk past the navel is outside of the mother."
The second change responds to the "health of the mother" issue. The Court ruled in Stenberg that an abortionist must be allowed to perform a partial-birth abortion if it is the method least likely to cause side effects for the mother. The majority reached this result by referring to abortionist Leroy Carhart, who claims that late-term partial-birth abortion is sometimes the method least likely to cause injurious side effects.
The new bill confronts this issue by relying on congressional findings that partial-birth abortion is never necessary to protect a mother's health and may even expose her to serious health risks. The bill reads: "Congress finds that partial-birth abortion is never medically indicated to preserve the health of the mother; is in fact unrecognized as a valid abortion procedure by the mainstream medical community; poses additional health risks to the mother; blurs the line between abortion and infanticide in the killing of a partially born child just inches from birth; and confuses the role of the physician in childbirth and should therefore be banned."
The National Right to Life Committee is optimistic about the future of the bill, which should move quickly through the House. A letter to members of Congress from the NRLC expresses hope that the new bill could satisfy Justice Sandra Day O'Connor's concern that the dilation and evacuation procedure should be excluded from the ban.
Rachel DiCarlo is a staff assistant at The Weekly Standard.