Senate OKs partial birth abortion bill
October 22, 2003
By SHERYL GAY STOLBERG The New York Times
WASHINGTON -- The Senate on Tuesday overwhelmingly approved the first federal ban on a specific abortion procedure, ending eight years of divisive debate and clearing the way for President Bush to sign the measure into law.
Backers of the legislation declared the 64-34 vote a historic turning point in a controversy that has split Americans for decades.
"The legislation we just passed will save lives," Sen. Bill Frist, the majority leader and a surgeon, said after the vote. "We have just outlawed a procedure that is barbaric, that is brutal, that is offensive to our moral sensibilities, and it is out of the mainstream of ethical practice of medicine today."
Opponents of the bill, saying it is unconstitutional, vowed to challenge it in court as soon as Bush signs it. But the president said he looked forward to the signing ceremony, and called the measure "very important legislation that will end an abhorrent practice and continue to build a culture of life in America."
Once Bush signs the bill it will become the first federal law to prohibit an abortion procedure since the Supreme Court established a constitutional right to abortion in the case of Roe v. Wade 30 years ago.
The bill, the opponents said, was a profound rollback of the constitutional right to abortion that was established in the Supreme Court case of Roe v. Wade 30 years ago.
The opponents assert that the language is so broad as to outlaw more than one type of abortion and say the bill is unconstitutional because it lacks an exception for the health of the mother. Three years ago, the Supreme Court rejected a similar law in Nebraska on those grounds.
"Congress has turned its back on America's women, their right to privacy, the right to choose," said Sen. Tom Harkin, D-Iowa. "America's women are now second-class citizens."
Seventeen Democrats joined with 47 Republicans to give final passage to the bill, which outlaws a procedure that doctors call intact dilation and extraction, but critics call partial-birth abortion. Specifically, the bill prohibits anyone from delivering a baby, "for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus."
The Senate vote came after a day of emotional and often graphic debate. At one point, Sen. Mike DeWine, R-Ohio, read an account written by a nurse who had witnessed the so-called partial-birth procedure, and was horrified by it. At another, Sen. Sam Brownback, R-Kan., showed a photograph of a 21-week old fetus he said had been spared an abortion by doctors who operated, in the womb, to correct a birth defect.
"Is little Samuel's hand the hand of a person," he said, pointing to the photograph, "or is it the hand of a piece of property?" To which Sen. Barbara Boxer, D-Calif. who is the bill's chief opponent, replied: "I am not a doctor, and I am not God. I trust other human beings to make these decisions."
Tuesday's action by the Senate ends the long and tortured legislative history of the ban, which was passed by Congress twice before, but vetoed both times by President Bill Clinton. This year, with Republicans controlling both houses of Congress and the White House, abortion opponents, who began pressing for the ban in 1995, knew victory would be assured.
The measure passed both the House and Senate earlier this year, but got hung up because the Senate version included language, opposed by the House, that reaffirmed lawmakers' support for the Roe decision. The language was stripped from the bill in conference, and the House gave final passage to the measure on Oct. 2, 281-142.
But in the Senate, advocates of the right to abortion, led by Boxer, insisted on one more day of debate before final passage. They characterized the bill as an assault on the right to privacy established by the Roe case, and an intrusion into the ability of doctors and patients to make their own medical choices.
"This is a bad package for the families of America," Boxer said, adding, "I know the handwriting is on the wall, and that it will pass, but the issue is not going away."
Indeed, three groups say they will file suit to block the law from taking effect. They are the Center for Reproductive Rights, an advocacy group in New York that brought the Nebraska case; the Planned Parenthood Federation of America and the National Abortion Federation, which represents 400 centers that provide more than half the 1.2 million abortions performed in this country each year.
The American Civil Liberties Union will represent the abortion federation in its suit.
The bill defines the procedure as one 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 naval 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."
Under the measure, doctors who perform the prohibited procedure would be subject to two years in prison and unspecified fines.
"This bill puts doctors in the untenable position of choosing the best and most appropriate care for their patients or risk going to jail," said Vicki Saporta, the abortion federation's president. Of the Senate vote, she said, "It will be a very short-lived victory. The bill will be enjoined and will not become law."
Legal experts tend to agree. David J. Garrow, a professor of law at Emory University who is an expert in abortion case law, said, "The absence of an all-encompassing health exception means this is DOA."
But the congressional authors of the bill say they have addressed the Supreme Court's concerns, by narrowing the language of the ban to make it more specific, and by including congressional "findings of fact" that suggest the procedure they are trying to outlaw is never medically necessary.
"It is never medically indicated," Sen. Rick Santorum, R-Pa. and lead Senate sponsor of the measure, said in Senate debate on Tuesday. "If your concern is women's health then you would be for banning this procedure."
Garrow said courts were likely to disregard such congressional pronouncements. But proponents of the ban say the legal climate may change, particularly if Bush wins re-election. They are hopeful that, by the time the case reaches the Supreme Court, Bush will have had an opportunity to appoint new justices, and the slim 5-4 majority that rejected the Nebraska law will no longer hold together.
The Senate's votes, and Bush's signing of the bill, will undoubtedly have political ramifications for the 2004 presidential race. Already, the National Abortion Rights Action League, an advocacy group, is planning television advertisements criticizing the Bush administration as interfering with the right to privacy. The advertisements will run in Washington, and also Iowa and New Hampshire, where Democratic presidential hopefuls are campaigning.
Advocates of the right to abortion are also planning a major rally for next April. As the Senate was debating the abortion measure on Tuesday, Gloria Feldt, the president of Planned Parenthood, was at the University of Massachusetts to fan enthusiasm among college students for the march.
"This is not unexpected," Feldt said in a telephone interview, referring to the Senate vote, "but it's also a good time to recognize what a historic day this is. This is the first time that the White House and both houses of Congress have been aligned in lockstep and ready to take away reproductive choice."