By Steve 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?

Why all the fuss?
Unlike most types of abortions, partial birth abortions are performed relatively late in a woman’s 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 industry’s 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 woman’s 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.

History 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 Haskell’s 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 baby’s 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 baby’s 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 baby’s 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 baby’s 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 Nebraska’s 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 Nebraska’s 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.

What 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 child’s entire head is outside the mother, or, in the case of a breech delivery, any part of the baby’s trunk past the navel is outside the mother’s 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 world.

In Stenberg v. Carhart, the Supreme Court case finding Nebraska’s 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 women’s 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 woman’s 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.”

The 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.

The 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 Court’s 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 ultimately prevail.