What follows is a background paper on the Partial-Birth Abortion Ban Act (H.R. 4965), produced by the National Right to Life Committee (NRLC) in Washington, D.C., on July 23, 2002. The U.S. House of Representatives will take up this legislation on Wednesday, July 24. An archive of key documents on the subject is posted at www.nrlc.org/abortion/pba/index.html. Among the documents that may be particularly useful are "Key Facts on Partial-Birth Abortion" (www.nrlc.org/abortion/pba/KeyfactsJune02.html), and NRLC's footnoted testimony before the joint congressional judiciary committees on March 11, 1997 (www.nrlc.org/abortion/pba/test.html). This factsheet is also available in PDF, WordPerfect, or Word formats. You may also send e-mail inquiries to Legfederal@aol.com, or call (202) 626-8820 (or press calls, 202-626-8825).

The U.S. House of Representatives is expected to pass the Partial-Birth Abortion Ban Act (H.R. 4965) on Wednesday, July 24 by a wide margin and with bipartisan support. The bill, sponsored by Congressman Steve Chabot (R-Ohio), has 154 House cosponsors. In the Senate, Senator Rick Santorum (R-Pa.) is the leader on the issue.

Congress has approved national bans on partial-birth abortion twice before, but they were vetoed by President Clinton in 1996 and 1997. On each occasion, the House voted to override the vetoes, but supporters fell short of the necessary two-thirds majority in the Senate. President Bush supports a ban on partial-birth abortion, so veto override margins are no longer necessary.

But the prospects for the bill in the Senate are unclear, because Senate Majority Leader Tom Daschle (D-SD) is closely allied with the pro-abortion lobby, which vehemently opposes the bill. Daschle could employ the procedural powers of the majority leader to prevent an up-and-down vote on the House-passed bill. The last time the Senate dealt with the partial-birth abortion issue, on October 21, 1999, 63 senators voted to pass the ban, and two additional senators who supported it were absent, for a total of 65. Fourteen Democratic senators supported the bill on that occasion; only four Republican senators opposed it. "We will soon learn whether Senate Democratic Leader Tom Daschle will allow the Senate to pass the ban on partial-birth abortions and send it to President Bush," said Douglas Johnson, legislative director for the National Right to Life Committee (NRLC).

What is a partial-birth abortion?

Supreme Court Justice Clarence Thomas accurately described the partial-birth abortion method in his dissent in Stenberg v. Carhart (2000): "After dilating the cervix, the physician will grab the fetus by its feet and pull the fetal body out of the uterus into the vaginal cavity. At this stage of development, the head is the largest part of the body. . . . the head will be held inside the uterus by the woman's cervix. While the fetus is stuck in this position, dangling partly out of the woman's body, and just a few inches from a completed birth, the physician uses an instrument such as a pair of scissors to tear or perforate the skull. The physician will then either crush the skull or will use a vacuum to remove the brain and other intracranial contents from the fetal skull, collapse the fetus' head, and pull the fetus from the uterus."

Supreme Court ruling

The five-justice majority in Carhart thought that Nebraska's definition of "partial-birth abortion" was vague and could be construed to cover not only abortions in which the baby is mostly delivered alive before being killed, but also the more common "dilation and evacuation" (D&E) method, in which a well-developed unborn child is dismembered piece by piece while he or she is still inside the uterus, during which attached extremities are sometimes pulled into the birth canal. In order to avoid any possibility of such confusion, the new bill defines a prohibited partial-birth abortion 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 navel is outside the body of the mother," and then kills the baby. (Pro-abortion groups continue to assert that this definition covers some dismemberment procedures, but they have not explained how -- indeed, it appears they hope that journalists will not press them to discuss the specific definition of partial-birth abortion in the bill or the specifics of any other late-term abortion methods.)

The five-justice majority also ruled that an abortionist must be allowed to use the partial-birth abortion method if he believes that it is the method which has the lowest risk of side effects for any particular woman seeking an abortion in the second trimester or third trimester. The majority reached this result by deferring to findings of fact by the trial court, which were based on acceptance of assertions by late-term abortionist Dr. LeRoy Carhart and others that the partial-birth abortion method was sometimes the method least likely to cause side effects. H.R. 4965 addresses this issue by incorporating congressional findings that partial-birth abortion is never necessary to protect the health of a woman and, indeed, exposes a woman to substantial and additional health risks.

The bill concludes that, based on the extensive congressional hearing record on partial-birth abortion, "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."

Pro-Abortion disinformation

The pro-abortion disinformation campaign suffered another blow in February, 1997, when Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers, admitted that he and leaders of other pro-abortion groups had claimed that the partial-birth method was rare and used only in extraordinary circumstances, although they knew otherwise. Said Fitzsimmons, "[I] lied through my teeth," but he also noted that when he lied he had reflected the "party line" adopted by the major pro-abortion advocacy groups. "In the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along, Mr. Fitzsimmons said." (The New York Times, Feb. 26, 1997, p. A11; Washington Post, Feb. 27, 1997, p. A4.) (20 weeks is the halfway point in pregnancy – 4½ months in layperson's terms.) See clippings at www.nrlc.org/abortion/pba/index.html.

Alternative Phony Ban

In truth, the Hoyer-Greenwood proposal would apply absolutely no restrictions to partial-birth abortions until after a baby is provably "viable" -- which abortionists generally claim is in the seventh month or even later -- even though the great majority of partial-birth abortions are performed in the fifth and sixth months. Thus, the vast majority of partial-birth abortions are entirely outside the scope of the Hoyer-Greenwood bill. Moreover, the Hoyer-Greenwood proposal would allow even the killing of provably "viable" babies in the seventh, eighth, and ninth months to enhance the "mental health" of the mother, as the sponsors explicitly confirmed in a Hoyer-Greenwood "Dear Colleague" letter dated March 16, 2000, posted at www.nrlc.org/abortion/pba/Phony%20ban%20on%20late-term.pdf. This is a position supported by only a tiny fraction of Americans in public opinion polls. (Mr. Hoyer elsewhere has explained that "mental health" includes "psychological trauma.")

The National Right to Life Committee is the nation's major pro-life organization, representing affiliates in all 50 states.

VSHL is the Virginia affiliate of the National Right to Life Committee.