Crampton | Chief Counsel, AFA Center
On November 5, President George W. Bush signed into law the Partial
Birth Abortion Ban Act of 2003, the first direct national restriction
on any method of abortion since the infamous Roe v. Wade
decision in 1973. Twice before, in 1995 and 1997, Congress passed
similar legislation, but President Bill Clinton vetoed the bills.
Almost before the ink was dry after President Bush signed the new
ban, however, a federal court in Nebraska ruled it unconstitutional.
Within days, two other federal courts followed suit. This lightning-quick
action by the courts raises several questions. Is the law unconstitutional
on its face? What effect, if any, would the law have on the current
practices of the abortion industry? Why did the courts act so quickly
to prohibit enforcement of the ban?
all the fuss?
Unlike most types of abortions, partial birth abortions are performed
relatively late in a womans pregnancy. It is a common misconception
that a partial birth abortion can only occur when a child is near
full-term, however. In fact, most partial birth abortions are performed
in the fifth and sixth months of pregnancy (20 to 32 weeks pregnant).
Moreover, by most estimates, partial birth abortions account for
only a small percentage of the total abortions performed annually.
According to the abortion industrys own figures, partial birth
abortions number between 2,000 and 5,000 per year, while 1.3 million
total abortions are performed each year in America.
Despite the modest numbers of partial birth abortions performed
annually, the controversy surrounding the Act has been enormous.
The pro-abortion forces see the move to ban partial birth abortions
as a significant intrusion on a womans so-called right to
choose. They also see the political efforts to pass the ban as an
effort to sway public opinion against abortion rather than a genuine
attempt to protect women or children.
of partial birth abortion
Partial birth abortion is a relatively new procedure. It was largely
unknown prior to the discovery in 1992 of an instruction paper on
how to perform it written by abortionist Martin Haskell of Ohio.
The outcry over the gruesome details of Haskells method led
to a series of highly publicized congressional hearings investigating
the procedure. One witness, Brenda Pratt Shafer, was a nurse who
assisted at an abortion clinic and witnessed a partial birth abortion
first hand. Her description of the process was electrifying. She
testified that the instant she saw the babys body go limp
from the procedure, she switched from being pro-choice
to pro-life. She walked out of the clinic that day and never returned.
In a nutshell, a partial birth abortion typically involves an abortionist
reaching into the uterus, grabbing the unborn babys leg with
forceps, and pulling the still-living baby into the birth canal,
except for the head, which is deliberately kept just inside the
womb. The abortionist then sticks scissors into the back of the
babys skull and spreads the tips of the scissors apart to
enlarge the wound. He then removes the scissors, inserts a suction
catheter, and sucks the babys brains out. The collapsed head
is then removed from the uterus.
Although the previous federal partial birth abortion bills failed
to become law, several state legislatures did enact bans on the
procedure. One of those states was Nebraska. The Nebraska partial
birth abortion law ultimately made its way to the United States
Supreme Court where, in June of 2000, the Court struck the law as
unconstitutional in a sharply divided 5-4 decision. In particular,
the Court found Nebraskas law which was modeled after
the unsuccessful congressional bills failed to include an
exception for the health of the mother.
The Court also found that Nebraskas ban reached too broadly,
banning not only the dilation and extraction procedure,
which could be banned constitutionally, but also the dilation
and evacuation method, which could not be banned.
the Act does
One of the defects in the previous versions of the partial birth
abortion bans was the lack of a clear definition of the precise
procedure prohibited under the law. The new Act addresses that problem
by defining partial birth abortion as one in which a
living, unborn child is intentionally delivered through the birth
canal and either the childs entire head is outside the mother,
or, in the case of a breech delivery, any part of the babys
trunk past the navel is outside the mothers body before the
baby is killed.
In other words, the Partial Birth Abortion Ban specifically targets
those abortions in which the process of birth is begun solely in
order to kill the baby even as she is first coming into the outside
In Stenberg v. Carhart, the Supreme Court case finding Nebraskas
partial birth abortion statute unconstitutional, the ruling turned
in large measure on a hotly contested issue of fact concerning whether
the health-of-the-mother exception was necessary. The lower court,
to which the Supreme Court defers on issues of fact, had found that
the ban presented a risk to womens health in certain circumstances.
In response to this factual finding in Stenberg, Congress set forth
extensive factual findings of its own in the new Act. Citing the
record developed over several years, Congress found that a
partial birth abortion is never necessary to preserve the health
of a woman.
Congress also found that partial birth abortion poses serious
risks to a womans health, and lies outside the standard of
medical care. In unusually strong language, Congress wrote
that the Act will draw a bright line that clearly distinguishes
abortion and infanticide, that preserves the integrity of the medical
profession, and promotes respect for human life.
coming legal battles
The significance of this language in the context of the present
legal challenges is that the courts are normally duty-bound to defer
to Congress on matters of fact finding. Courts are ill-suited to
the task of ferreting out facts. They have no investigators of their
own, their resources for factual research are virtually non-existent,
and they are not equipped to perform in-depth factual development.
By contrast, Congress is expressly designed to investigate and discover
the facts. As the Supreme Court observed in an unrelated case, Congress
is far better equipped than the judiciary to amass and evaluate
the vast amounts of data bearing upon an issue as complex and dynamic
as that presented here.
Consequently, under normal circumstances, courts do not second-guess
Congress on matters of fact. The standard of review employed by
the courts in analyzing congressional fact findings is the lowest
level of scrutiny, the so-called rational basis test.
Under this standard, Congress actions are upheld if there
is any reasonable basis to support them. In fact, the courts routinely
uphold congressional legislation even where it is supportable only
by a rational inference to be drawn from the evidence gathered.
In other words, under the rational basis test, legislation is hardly
ever overturned, especially where, as here, Congress has taken special
pains to develop the factual record.
abortion distortion effect
Cases involving abortion, however, are often not subjected to the
normal rules. There is, as has been frequently observed, an abortion
distortion effect that changes the way courts approach abortion
cases. Therefore, the deferential treatment usually afforded congressional
fact findings may not be extended to the cases challenging the constitutionality
of the new Act. In other words, the principle of judicial restraint
rarely applies in the abortion context.
The Supreme Court had ruled in Stenberg that any law must
contain an exception for abortions necessary for the health of the
mother. This exception, first articulated in the companion case
to Roe known as Doe v. Bolton, actually swallows the rule,
because it has been held to include even mental and emotional health.
Thus, under this exception, virtually any partial birth abortion
can be justified as necessary for the emotional well-being
of the pregnant woman who does not want the child.
In order to counter this rule-swallowing exception, Congress made
detailed factual findings that a partial birth abortion is never
necessary for the health of the mother, because other, less gruesome
alternatives are always available. In the Nebraska case challenging
the new partial birth abortion ban (brought by the same abortionist
involved in Stenberg), however, the court gave short shrift
to Congress findings in enjoining the law. It made only passing
mention of them, and then promptly ruled the law unconstitutional.
In short, the Nebraska court was presented with a choice of authority
between the Supreme Court and Congress; it chose to follow the Court
rather than Congress without hesitation. The legal challenges to
the new Act thus present a classic contest between the legislative
branch and the judicial branch. In the wake of the Roy Moore Ten
Commandments case, the Massachusetts same-sex marriage case, and
the Supreme Courts decision in the Texas sodomy case last
summer, the partial birth abortion case takes on added significance.
It is likely that the constitutionality of the new Act will not
be finally settled until the Supreme Court addresses it. That may
take two years or more, although the government has asked that the
cases be expedited. The new Act should be upheld, despite the disturbing
history of the activist courts routinely striking any abortion ban
brought before them. Let us hope that sanity and the rule of law