Partial-Birth Abortion Ban Act

The Partial-Birth Abortion Ban Act of 2003 (Template:USStatute, Template:USC,<ref name="act">Partial-Birth Abortion Ban Act of 2003, Enrolled as Agreed to or Passed by Both House and Senate Template:Webarchive (HTML); * same, from the U.S. Government Printing Office (PDF)</ref> PBA Ban) is a United States law prohibiting a form of late termination of pregnancy called "partial-birth abortion", referred to in medical literature as intact dilation and extraction.<ref name="gonzales">Gonzales v. Carhart, 550 U.S. 124 (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.")</ref> 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 law was enacted in 2003, and in 2007 its constitutionality was upheld by the U.S. Supreme Court in the case of Gonzales v. Carhart.

Provisions

This statute prohibits a method of abortion; the statute calls the prohibited method "partial birth abortion". The procedure described in the statute is used in the second trimester,<ref>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."</ref> from 15 to 26 weeks, most of which occurs before viability. The law itself contains no reference to gestational age or viability. The statute is directed only at a method of abortion, rather than at preventing any woman from obtaining an abortion.<ref>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'."</ref>

The statute includes two findings of Congress:Template:Quote

The statute also provides that:

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."<ref>Hadley Arkes, Talking Partial-Birth Abortion, National Review (October 13, 2004).</ref>

Citing the Supreme Court case of Doe v. Bolton (1973), some pro-life supporters have asserted that the word "health" would render any legal restriction meaningless, because of the broad and vague interpretation of "health".<ref>Amicus Brief of Christian Legal Society in Gonzales v. Planned Parenthood (2006-08-03).</ref> This was of particular concern when it came to anticipated arguments that such a definition would encompass "mental health", which some thought would inevitably be expanded by court decisions to include the prevention of depression or other non-physical conditions. Pro-choice groups object to this statute primarily because there is no exemption if the health of a woman is at risk.<ref>"D&X / PBA PROCEDURES: Reactions to the 2003 federal law." ReligiousTolerance.org Retrieved April 18, 2007.</ref>

Partial-birth abortion defined by law

The phrase "partial-birth abortion" was first coined by Douglas Johnson of the National Right to Life Committee.<ref name="auto">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> The phrase has been used in numerous state and federal bills and laws, although the legal definition of the term is not always the same. The Partial-Birth Abortion Ban Act defines "partial-birth abortion" as follows:

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.<ref>Abortion Bans: Myths and Facts. American Civil Liberties Union. Accessed April 14, 2006.
Stenberg v. Carhart, 530 U.S. 914 (2000)</ref> 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.<ref name="gonzales" /> Some commentators have noted that the Partial-Birth Abortion Ban Act's language was carefully crafted to take into account previous rulings.<ref>"Defending the Innocent" Washington Times 2003. Retrieved May 3, 2007.</ref> Although in most cases the procedure legally defined as "partial birth abortion" would be medically defined as "intact dilation and extraction", these overlapping terms do not always coincide. For example, the IDX procedure may be used to remove a deceased fetus (e.g. due to a miscarriage or feticide) that is developed enough to require dilation of the cervix for its extraction.<ref name="extract">Gonzales v. Carhart, 550 U.S. ____ (2007). Findlaw.com. Retrieved 2007-04-30. ("If the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure.")</ref> Removing a dead fetus does not meet the federal legal definition of "partial-birth abortion", which specifies that partial live delivery must precede "the overt act, other than completion of delivery, that kills the partially delivered living fetus".<ref>U.S. Code, Title 18, Part I, Chapter 74, Section 1531, "Partial-birth abortions prohibited".</ref> Additionally, a doctor may extract a fetus past the navel and then "disarticulate [i.e. decapitate] at the neck", which could fall within the terms of the statute even though it would not result in an intact body and therefore would not be an intact dilation and extraction.<ref name="harpers">Gorney, Cynthia. Gambling With Abortion. Harper's Magazine, November 2004.</ref>

Legislative and judicial history

The Republican-led Congress first passed similar laws banning partial-birth abortion in December 1995, and again October 1997, but they were vetoed by President Bill Clinton.<ref name="auto"/><ref>Maureen L. Rurka, "The vagueness of partial-birth abortion bans: deconstruction or destruction?." Journal of Criminal Law and Criminology 89.4 (1999): 1233-1268. Online </ref>

In the House, the final legislation was supported in 2003 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.<ref name="House">House Roll Call No. 530, (2003-10-02).</ref> In the Senate the bill was supported by 47 Republicans and 17 Democrats. It was opposed by 3 Republicans, 30 Democrats, and 1 independent.<ref name="Senate">Senate Roll Call No. 402 (2003-10-21).</ref> Two Senators were absent, Kay Bailey Hutchison (R-TX), a supporter of the bill, and John Edwards (D-NC), an opponent of the bill.

The only substantive difference between the House and Senate versions was the Harkin Amendment expressing support for Roe v. Wade.<ref>Senate Roll Call on Harkin Amendment.</ref> A House–Senate conference committee deleted the Harkin Amendment, which therefore is absent from the final legislation.<ref name="act" /> On November 5, 2003, after being passed by both the House and the Senate, the bill was signed by President George W. Bush to become law.

The constitutionality of the law was challenged immediately after the signing. Three different U.S. district courts declared the law unconstitutional.<ref>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)</ref><ref>National Abortion Federation v. Ashcroft, Opinion and Order, United States District Court for the Southern District of New York (August 26, 2004)</ref><ref>Carhart v. Ashcroft, Memorandum and Order Template:Webarchive, United States District Court for the District of Nebraska (September 8, 2004)</ref> 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, which were then affirmed by three courts of appeals.<ref>Gonzales v. Carhart, United States Court of Appeals for the Eighth Circuit (July 8, 2005)</ref><ref>Planned Parenthood Federation v. Gonzalez, United States Court of Appeals for the Ninth Circuit (January 31, 2006)</ref><ref>National Abortion Federation v. Gonzalez Template:Webarchive, United States Court of Appeals for the Second Circuit (January 31, 2006)</ref> The Supreme Court agreed to hear the Carhart case on February 21, 2006,<ref>Supreme Court Docket, Gonzales v. Carhart (No. 05-380), providing copies of briefs, courtesy of Findlaw.com.</ref> and agreed to hear the companion Planned Parenthood case on June 19, 2006.<ref>Supreme Court Docket, Gonzales v. Planned Parenthood (No. 05-1382), providing copies of briefs, courtesy of Findlaw.com.</ref>

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.<ref>Yahoo! News, 2007-04-18.</ref> Kennedy's majority opinion argued that the case differed from Stenberg v. Carhart, a 2000 case in which the Supreme Court struck down a state ban on partial-birth abortion as unconstitutional, in that the Partial Birth Abortion Act defined the banned procedure more clearly. In dissent, Ginsburg argued that the decision departed from established abortion jurisprudence, and that lack of a health exception "jeopardizes women’s health and places doctors in an untenable position". The replacement of O'Connor by Alito was identified as a key difference between the 5–4 decision against the Nebraska law in Stenberg and the 5–4 support for the abortion ban in Gonzales.<ref name="nyt-greenhouse">Template:Cite news</ref>

Public opinion

A Rasmussen Reports poll four 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, 66% agreed with the decision and 32% were opposed.<ref>Most Who Know of Decision Agree With Supreme Court on Partial Birth Abortion Rasmussen Reports. April 22, 2007. Retrieved on April 26, 2007</ref> 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 60–75% in favor of banning partial-birth abortions and between 25–40% opposed.<ref>Abortion and Birth Control. PollingReports.com Retrieved April 26, 2007</ref>

Clinical response

In response to this statute, many abortion providers have adopted the practice of inducing fetal demise before beginning late-term abortions. Typically, a solution of potassium chloride or digoxin is injected directly into the fetal heart using ultrasound to guide the needle.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref><ref>Template:Cite news</ref> This is often done by providers who do not perform intact dilation and extraction procedures (as well as by those who do) because they feel the broad wording of the ban compels them "to do all they can to protect themselves and their staff from the possibility of being accused".<ref>Template:Cite news</ref>

External links

• ReligiousTolerance.org: D&X Procedure (aka Partial Birth Abortion) – All sides
• American Right To Life's list of dozens of anti-abortion leaders who condemned the PBA "ban" as a scam.
• Gina Gonzales as told to Barry Yeoman, "I Had An Abortion When I Was Six Months Pregnant," Glamour