Sound and Supported

by Chris Galiardo | 11/5/03 6:00am

I applaud the editorial board for opining on the partial-birth abortion ban that becomes law on Wednesday. With almost unprecedented unanimity, horrified Americans have clamored for an end to this procedure that medical experts have said borders on infanticide. The figures are absolutely staggering. Gallup polls indicate that 70 percent of American voters support the ban. Their elected politicians, both at the state and national levels, have represented public opinion well, voting overwhelmingly in favor of the ban. Virtually the entire medical establishment, led by the American Medical Association and PHACT, has supported the legislation.

Based on other letters to the editor published in the wake of The Dartmouth's pronouncement, though, much confusion still circulates regarding this issue. Pro-choice advocates object to the bill's supposed unconstitutionality and lack of a Greenwood-proposed "health exception." Pro-lifers, on the other hand, insist upon the legitimacy of the nascent law. Buffeted on the seas of partisan cacophony, how are we to evaluate these differing claims? How are we to parse the empirical facts from the vacuous demagoguery? Luckily, we have the assistance of the Supreme Court and the medical establishment. So, instead of spinning our tires on the Teflon of opinion, let's look to these entities for guiding lights on this issue.

Opponents of the ban who have written into The Dartmouth claim that the Supreme Court already ruled out any such legislation in its decision in the June 2000 case Stenberg v. Carhart. This mirrors the claim of pro-choice activists around the country, some of whom have vowed to challenge the ban even before Bush's signature dries on it. Indeed, the ACLU and the National Abortion Federation have not even waiting for the ink; they filed a joint lawsuit in New York against it on Friday.

The wording of the new bill, though, will likely prove their contention to be unfounded and frustrate their attempts to obtain a judicial injunction against it. The most cursory glance at the Supreme Court's statement in Stenberg v. Carhart makes this obvious. When it narrowly invalidated the partial-birth abortion bans of 30 states in one fell swoop, the split Supreme Court centered its decision on a definition of the procedure that was considered "too broad" and on the absence of a "health exception" for the mother.

Congress took careful note, making sure to avoid these pitfalls while drafting the current version of the partial-birth abortion ban.

First, Congress carefully described the procedure termed "partial-birth abortion" in this new bill. Now only those abortion methods in which the child is deliberately delivered past the navel and then the skull is pierced with scissors and the brain sucked out will be outlawed. The most common second and third-trimester abortion procedure, dismemberment inside the womb, will still remain legal. This is obvious from even a cursory reading of the bill.

Second, Congress heard the testimony of innumerable medical experts on whether partial-birth abortion is ever necessary to protect a woman's health. As the hours of testimony wore on, the common refrain centered ineluctably on an emphatic "no" to the question. The American Medical Association (in H-5.981 Policy Concerning HR 1122) unmistakably said so. So did Dr. James McMahon, who developed the procedure. These professional medical assessments echoed the admissions of the pro-choice lobby's triumvirate back in 1997. Soon after having testified before Congress that partial-birth abortion was rare and necessary to protect some women's health, Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers, recanted in the "The New York Times." With surprising frankness, he asserted that he had "lied through my [his] teeth." Renee Chelian, president of the National Coalition of Abortion Providers concurred in an interview in "The Record:" "The spin out of Washington was that it [partial-birth abortion] was done for medical necessity, even though we knew it wasn't so." Gloria Feldt, president of Planned Parenthood (the largest abortion provider in the country) had also confessed to having misled the public on the issue by November. So both pro-life and pro-choice activists agreed, in both congressional hearings and newspaper exposs, that partial-birth abortion is never necessary.

Both the objections from the 2000 Stenberg v. Carhart have been fully addressed. First, the definition of "partial-birth" has been narrowed. Second, the inclusion of a "health" clause has been proven superfluous, as both medical associations and abortion experts have incontrovertibly ascertained that partial-birth abortion is never necessary. Therefore, as long as it stands beside its rationale for striking down Nebraska's partial-birth abortion ban in 2000, the prospects of the Supreme Court upholding this ban seem certain.

The strong constitutional case for the ban notwithstanding, we can rest assured that some extremist pro-choice parties will seek to overturn the will of the people (70 percent for the ban) and of the people's elected representatives in Congress (two-thirds of whom, in each house, supported the ban). In doing so, they will not only show disdain for democracy but promote unconstitutionality.

Even more shamelessly, they will continue risking women's lives and health for the sake of abortion profits. Perhaps glimmering of gold and the sirens of power have blinded many who are pro-choice to the fact that partial-birth abortion often results in uterine rupture, breast and cervical cancer. Severe bleeding can also lead to shock and maternal death. But Congress and the President have not forgotten about women and their health, or about their babies just inches from birth.