The National Catholic Review
Antony Barone Kolenc

Does the ban on partial-birth abortion really save babies’ lives? Does the ban violate the U.S. Constitution? How crucial is the ban to the pro-life movement? This summer, federal judges in California, New York and Nebraska dealt a major setback to pro-life efforts to ban the controversial partial-birth abortion procedure. The judges found that the ban violates the U.S. Constitution. The ban on partial-birth abortion has become a victim of risky political strategies and legal failures. Yet, despite its flaws, the ban has posted strong successes for the pro-life movement by molding public opinion and raising awareness about the evils of abortion.

Partial-birth abortion came to public attention in 1992 during a presentation given by Marvin Haskell, M.D., to the National Abortion Federation. Some doctors claim to have performed similar techniques since the 1970’s. When the American public discovered the facts about partial-birth abortion, many united to speak on behalf of the unborn. A political movement took shape to ban the procedure. The issue became the new rallying cry for the pro-life movement.

Overnight, the procedure was tagged as the most inhumane method of abortion, causing severe pain to an unborn child who is already in the process of a live birth. The method is commonly compared to infanticide, because the child is almost entirely delivered before the abortion doctor brutally ends his or her life. This is done by crushing the child’s skull just moments before the first breath.

Religious leaders and politicians spoke out, putting the partial-birth abortion issue at center stage in America’s abortion debate. The pursuit of a legal ban became a defining issue for the pro-life movement. For their part, pro-abortion groups opposed the ban as an attempt to overturn Roe v. Wade, the 1973 Supreme Court case that legalized abortion. As both sides marched into battle, the pursuit of a successful ban catapulted the issue onto an emotional and legal roller coaster ride.

By the end of the 1990’s, many Christians and other pro-life activists rejoiced that 30 states had banned the cruel procedure, but their victory celebration was short-lived. In Stenberg v. Carhart, a Supreme Court decision in 2000, a sharply divided court struck down Nebraska’s partial-birth abortion ban as a violation of the U.S. Constitution. The court decided that the ban was too broad and might place an undue burden on a woman’s ability to choose other legal methods of abortion. It also struck down the ban because it did not contain a health exception. This exception would allow doctors to perform partial-birth abortions when it was safer for the mother’s health.

The dissenting Supreme Court justices criticized the court’s new health exception, because it would make the ban meaningless. If abortion doctors determine when the procedure is necessary, then, they reasoned, no state could ever realistically enforce the ban.

Congress Passes a Defiant Federal Ban

Before Stenberg, Congress had joined the states in passing a federal partial-birth abortion ban. But President Clinton had vetoed it many times because it did not include a health exception. With the election of George W. Bush in 2000, new hope rose that a federal ban could be achieved.

Guided by Stenberg, Congress rewrote its ban so that it would not apply to other legal methods of abortion. This had been a major defect, according to the court, in the unconstitutional Nebraska law. But Congress refused to add a health exception to the law. Instead, Congress took a gamble on a risky political strategy that pitted it directly against the Supreme Court.

After conducting numerous hearings, Congress concluded that the partial-birth abortion procedure was never medically necessary to preserve a mother’s health; in fact, it found that the procedure posed serious health risks to the mother. With these conclusions in hand, Congress defied the Supreme Court and passed a ban on partial-birth abortion that did not contain the health exception required by Stenberg. Congress reasoned that it was the job of the legislative branch to determine the true facts of complex issues. Traditionally courts have deferred to Congress’s factual findings.

On Nov. 5, 2003, President Bush signed the federal partial-birth abortion ban, stating: For years, a terrible form of violence has been directed against children who are inches from birth, while the law looked the other way. Today, at last, the American people and our government have confronted the violence and come to the defense of the innocent child.

Less than a year later three federal courts have ruled that the ban is unconstitutional. Congress’s risky strategy has turned into a tragic legal failure. The judges who recently struck down the ban did not give Congress the deference that its findings of fact had traditionally received. Instead, they viewed Congress’s findings as self-contradictory and partially false. As a result, the partial-birth abortion ban is now in jeopardy. Although the government can appeal these recent decisions, it is unlikely that the Court of Appeals or the U.S. Supreme Court will treat the ban any better.

Reasons to Support the Ban

Supporters of the ban on partial-birth abortion have asserted two key reasons for banning the horrid procedure. First, they argue that the law prohibits a procedure that is more akin to infanticide than abortion. In his dissent from the Stenberg decision, Justice Anthony Kennedy explained why the ban is necessary. He wrote: States also have an interest in forbidding medical procedures which...cause the medical profession or society as a whole to become insensitive, even disdainful, to life.... Partial birth abortion is different from other abortion methods because the fetus is killed outside of the womb’ where the fetus has an autonomy which separates it from the right of the woman to choose treatments for her own body.

Without the ban, the medical profession is on a slippery slope that makes it more acceptable to devalue human life and kill even those babies who are just inches from birth.

Pro-life activists also point to a second reason why the ban is so crucial. Experts have testified that partial-birth abortion causes prolonged and excruciating pain to unborn children. Studies have shown that during the middle stages of fetal growth an unborn child has a deeper sense of pain than the child will have after birth. Thus, the ban can spare innocent children the prolonged and severe pain associated with the procedure.

Does the Ban Really Protect Babies?

There are good reasons to support a ban on partial-birth abortion. But a closer look at the ban reveals that while it provides little protection for unborn children, its true value lies in its symbolic power.

As an initial concern, the ban regulates only one of several available methods of abortion during the second or third trimesters of pregnancy. In fact, the banned procedure is used in relatively few abortions. Statistics for partial-birth abortion range from as few as 640 to as many as 5,000 procedures out of the hundreds of thousands of abortions performed each year.

Congress went out of its way to ensure that the ban would not impede a woman from aborting her child using another legal abortion method. This was necessary because the current majority on the Supreme Court will not allow other abortion methods to be banned. That would pose an undue burden on a woman’s right to an abortion, it argues. Ironically, targeting only a single method of abortion weakens the ban’s justification. Justice Stevensan abortion supporterargued in Stenberg that it was irrational to regulate only one method of abortion because the other procedures are just as gruesome and disrespectful to potential life. Justice Stevens has a point: the most common second-trimester abortion method (known as Dilation and Extraction, or D&E) involves literally ripping the unborn child apart limb from limb while the child is still living within the mother’s womb.

The most sobering realization about the ban on partial-birth abortion is that it does not actually save the life of the unborn child. This was made distressingly clear during the recent New York challenge to the federal ban. Government lawyers defending the ban argued that a doctor could legally use the banned procedure as long as the baby was already dead during delivery. This would exploit a legal loophole that required that the child be alive during the procedure. A doctor could first kill the child by injecting potassium chloride or digoxin into the heart. Then, the doctor couldwithout violating the bancontinue with a partial-birth abortion in the same horrid manner as always.

There is only one benefit to the unborn child from using this offensive loophole. The child would be spared the prolonged and excruciating pain associated with undergoing the partial-birth abortion procedure.

Fear of Compromise and Complacency

Some pro-life activists fear that the partial-birth abortion ban could lead to complacency and compromise on pro-life issues. With a ban in place, the American people might believe that they have eliminated the worst form of abortion. Instead of continuing the fight to protect the unborn, the public might disengage from the issue and never take on the larger issue of overturning Roe v. Wade.

Moreover, the ban was by necessity a product of political compromise. While passing its version of the ban, the U.S. Senate voted to make a statement about the controversial Roe v. Wade decision. The Senate voted 93 to 0 to include the following language in its version of the bill:

 

It is the sense of the Senate that (1) the decision of the Supreme Court in Roe v. Wade was appropriate and secures an important constitutional right; and (2) such decision should not be overturned.

 

Although Senate Republicans downplayed this compromise as only a procedural vote, the presence of this language undermines the more significant pro-life goal of overruling Roe.

The Ban’s True Power and Success

The partial-birth abortion ban is not perfect and provides only slight protection for unborn children. Yet despite its deficiency, the ban has succeeded in educating society and in swaying public opinion to help the unborn. The partial-birth abortion issue has kept the abortion debate at the forefront of the American conversation.

Before the partial-birth abortion issue erupted in the mid-90’s, it appeared that the pro-life movement had failed. Despite a string of conservative presidents and Congresses, the political machine had not garnered enough votes to pass a constitutional amendment or overturn Roe v. Wade. In fact, Supreme Court justices appointed to overrule Roe arguably expanded the reach of legal abortion.

But thanks to the partial-birth abortion issue, the fight for the lives of the unborn has remained front-page news for over a decade. Public awareness about abortion has been raised in a way never before achieved, and more voices are calling for less judicial activism and a return to a stricter interpretation of the U.S. Constitution. The issue has swung public opinion polls in the direction of the pro-life position. It has also energized the grass-roots pro-life movement and motivated a new generation of Americans to fight for unborn children. Even liberal college campuses, like the University of Michigan, have active student-led pro-life groups. Moreover, opinion polls show that American youth are more pro-life than their parents’ generation. As an example, the month before President Bush signed the law, a CNN/Gallup Poll found that 77 percent of young adults favored passing the ban versus 68 percent of older Americans.

The partial-birth abortion issue also deserves credit for heightening public awareness about the cruelty of all abortion methods. No longer are horrid descriptions of abortion reserved solely for pro-life literature distributed by right-to-life groups. That information is now available in official court decisions and repeated in the major news media outlets.

Further, some courts have drawn conclusions that are favorable to the pro-life position. The New York judge, for instance, who struck down the federal ban in August made some startling revelations that benefit the pro-life cause. The judge found that partial-birth abortion is a gruesome, brutal, barbaric, and uncivilized medical procedure that subjects unborn children to severe pain. He also noted that many abortion doctors do not make full disclosure of this type of information to women before an abortion.

The Future of the Pro-Life Movement

The risky strategy taken by Congress in passing the federal ban without a health exception will almost surely lead to the demise of the ban at the hands of the U.S. Court of Appeals or the Supreme Court. Yet the campaign of public education and awareness that has been set into motion may have long-lasting effects on American society. Pope John Paul II has said, A nation that kills its own children is a nation without hope. The education begun in the partial-birth abortion debate will, one hopes, lead more Americans of conscience to take three powerful steps toward ending abortion.

First, people should faithfully pray for an end to abortion. The power of prayer should not be underestimated. Jesus encouraged his disciples to persist in prayer when he said, Ask and it shall be given to you; seek and you shall find; knock, and it shall be opened to you (Mt. 7:7). Second, Americans should vote for candidates who will advance a pro-life agenda. The future of abortion lies in the hands of the U.S. Supreme Court. That court has teetered between approving and overruling Roe v. Wade. In recognition of this, Douglas Johnson, the legislative director for the National Right to Life Committee, recently commented, Future appointments to the Supreme Court will determine whether it remains legal to perform a partial-birth abortion.

Finally, people should support truthful education about abortion and its gruesome methods. As the partial-birth abortion issue has demonstrated, when the American public is informed about the evils of abortion, it will respond appropriately and demand action.

When the vast majority of Americans see the unborn child as a person and a victim, when the average American understands abortion to be a cruel and gruesome procedure, then the fruit of the labors to ban partial-birth abortion may be harvested. Until then, the fight continues.

Antony Barone Kolenc teaches constitutional law at the U.S. Air Force Academy in Colorado Springs, Colo.

Comments

CAtherine Ball | 12/11/2004 - 11:05pm
Regarding the article in the Nov. 29th issue by Anthony Kolenc (Legal Failure or Moral Success?), I could not resist relating many of his statements to the death penalty – and wondering if the pro-lifers will ever become a movement, not just for babies, but for all life. Partial-birth abortion is, indeed, horrendous and the battle should continue. But don’t stop there! Partial-birth abortion causes “prolonged and excruciating pain” and when society contemplated the “prolonged and excruciating pain” caused by the legal execution of humans by hanging or electrocution, they recoiled and decided that injection of a lethal substance was acceptable. Partial-birth abortion has been deemed “safer for the mother’s health” just as death by injection is safer for society’s health. Kolenc writes that Justice Stevens – an abortion supporter - argued - “that it was ‘irrational’ to regulate only one method of abortion because the other procedures are just as ‘gruesome’ and disrespectful to ‘potential life.’” Apply that to legal execution.

No matter how you sugar-coat it, abortion is ONE issue. Would the pro-lifers (THAT's a good name for fighting the death penalty!) and the “77% of young adults (who) favored passing the ban” feel as strongly about banning the death penalty? Are they willing to put their energies and votes behind taking action regarding the many other ways our society takes life and/or diminishes life? Are they willing to become family to the babies who are not aborted?

Do I want my morality legislated? Do I want a doctor and mother to go to jail for making such a choice? That is the result of making this decision a legal matter. Our jails are full of people that society wants to punish. Is this about punishment? What form of rehabilitation would we give them? Wouldn’t it serve society better to continue with education – to teach morality and live it rather than try to demand it?

john D. Fitzmorris, Jr | 11/23/2004 - 2:16pm
This is the kind of nuisanced but clear disucssion of the issue of abortion, free of the clutter of rhetoric, that the pro-life movement needs to bring its mesage to the public at large. Bravo!
CAtherine Ball | 12/11/2004 - 11:05pm
Regarding the article in the Nov. 29th issue by Anthony Kolenc (Legal Failure or Moral Success?), I could not resist relating many of his statements to the death penalty – and wondering if the pro-lifers will ever become a movement, not just for babies, but for all life. Partial-birth abortion is, indeed, horrendous and the battle should continue. But don’t stop there! Partial-birth abortion causes “prolonged and excruciating pain” and when society contemplated the “prolonged and excruciating pain” caused by the legal execution of humans by hanging or electrocution, they recoiled and decided that injection of a lethal substance was acceptable. Partial-birth abortion has been deemed “safer for the mother’s health” just as death by injection is safer for society’s health. Kolenc writes that Justice Stevens – an abortion supporter - argued - “that it was ‘irrational’ to regulate only one method of abortion because the other procedures are just as ‘gruesome’ and disrespectful to ‘potential life.’” Apply that to legal execution.

No matter how you sugar-coat it, abortion is ONE issue. Would the pro-lifers (THAT's a good name for fighting the death penalty!) and the “77% of young adults (who) favored passing the ban” feel as strongly about banning the death penalty? Are they willing to put their energies and votes behind taking action regarding the many other ways our society takes life and/or diminishes life? Are they willing to become family to the babies who are not aborted?

Do I want my morality legislated? Do I want a doctor and mother to go to jail for making such a choice? That is the result of making this decision a legal matter. Our jails are full of people that society wants to punish. Is this about punishment? What form of rehabilitation would we give them? Wouldn’t it serve society better to continue with education – to teach morality and live it rather than try to demand it?

john D. Fitzmorris, Jr | 11/23/2004 - 2:16pm
This is the kind of nuisanced but clear disucssion of the issue of abortion, free of the clutter of rhetoric, that the pro-life movement needs to bring its mesage to the public at large. Bravo!