A bill to ban a class of certain late-term abortions passed the U.S. House of Representatives on Wednesday, escalating a moral debate and sharpening disagreement about what types of abortion the act would prohibit.
President Bush said he will sign the measure, which the Senate passed in a slightly different form in March. Opponents promised to challenge the bill, which is similar to a Nebraska law the Supreme Court struck down as unconstitutional in 2000.
The new measure, which passed the House by a 282-139 vote, seeks to outlaw an abortion technique that Rep. Ileana Ros-Lehtinen (R.-Fla.) called “gruesome and inhumane.” Bush said the legislation “will help build a culture of life in America.”
Critics of the ban claim it’s difficult to tell when an abortion falls under the definition of what is called a “partial birth” abortion. They say the new bill would create an array of unintended consequences–banning some common abortion techniques while leaving similar methods untouched.
“Passing an unconstitutional bill will not save one life,” said Rep. Chet Edwards (D.-Tex.).
Supporters of the measure say it is specifically targeted at any abortion procedure in which the fetus is partially delivered before being killed.
The drive for the law began in the early ’90s, when groups opposing abortion rights began publicizing an abortion technique that physicians dubbed intact dilation and extraction, or D&X.
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D&X is a relatively rare technique, accounting for about 2,200 of the 1.3 million abortions performed each year in the U.S.
Fetus dies in womb
In that procedure, which is done in the second and third trimesters of pregnancy, the fetus is turned around inside the womb to a feet-first position and then pulled out halfway. The abortion provider inserts an instrument into the fetus’s skull to collapse it, after which the physician removes the dead fetus.
But some physicians say the language of the new legislation also would apply in some cases to a more common type of abortion called dilation and evacuation or D&E, which is used mainly in the second trimester of pregnancy, before the fetus would be viable outside the womb.
The Centers for Disease Control and Prevention estimates that D&E procedures account for about 96 percent of second-trimester abortions, or about 140,000 abortions overall.
In that procedure, the fetus often lives briefly after being taken from the uterus intact–making the technique subject to the congressional ban, some experts say.
The Supreme Court agreed with that argument when it nullified the Nebraska ban in its 2000 Stenberg vs. Carhart ruling. Dr. LeRoy Carhart, a Nebraska abortion physician who challenged the earlier law, said Wednesday the new federal law would force him to stop performing D&E abortions until a court grants an injunction suspending enforcement of the law.
“It would affect every abortion I do between the 14th and 18th week” of pregnancy, said Carhart, who said he intends to place his name on a challenge to the new federal law.
If Carhart is right, the ban could affect women such as Audrey Eisen, a 35-year-old microbiology researcher from a Southern state who had a D&E abortion in February. Eisen said she decided to have the abortion after ultrasound and genetic tests in the 15th week of her pregnancy revealed that her child had trisomy 13, a severe genetic disorder.
“Once we knew for sure, there wasn’t much of a choice,” Eisen said. “I have never cried like that in my life.”
In a D&E abortion, the physician often dismembers and kills the fetus while the fetus is still inside the mother’s body–a procedure the new law likely would not affect, experts say.
But many fetuses can be removed largely intact during a D&E, and die only after they have begun to leave the womb. Carhart said that “99 of 100” D&E abortions he performs involve removing an intact fetus.
“At what point during the abortion does [the fetus] die–that’s what we don’t know,” Carhart said.
Yet that question is crucial under the new bill. The language bans any procedure in which the fetus is killed after the head is outside the mother’s body–or in the case of a breech delivery, after “any part of the fetal trunk past the navel is outside the body of the mother.”
Clearer definition intended
Supporters of the bill said it was designed to be clearer in its definition of the banned procedure than the Nebraska law that the Supreme Court rejected.
“The definition issue is squarely addressed,” said Douglas Johnson, legislative director of the National Right to Life Committee.
Still, it’s not clear whether the new bill would ban all forms of the D&X technique that began the controversy in the first place.
In West Los Angeles, Dr. Josepha Seletz performs about five D&X procedures a week on fetuses with lethal defects diagnosed by other specialists, typically early in the third trimester. But Seletz said she injects a drug that causes the fetal heart to stop before she begins removing the fetus from the mother.
Because the fetus dies in utero, the late-term abortion ban does not appear to affect the abortions Seletz performs, no matter how far along the fetus is in development.
“When we get to delivery … the fetus is not alive and has not been alive for 48 hours,” Seletz said.
Exceptions for mother’s health
The Supreme Court’s opinion in the 2000 case indicated that, to be constitutional, a late-term abortion ban would have to provide exceptions for the health of the mother and be specific enough not to apply to a broad class of procedures. President Bill Clinton cited the lack of a health exception when he twice vetoed similar bills.
The new bill almost certainly will not pass the high court’s legal tests, said Julia Ernst, legislative counsel at the Center for Reproductive Rights, which plans to challenge the law once Bush signs it.
“Doctors don’t know what they’re forbidden from doing,” Ernst said. The new bill “fails to contain any health exception whatsoever,” she said.
Supporters of the measure concede that its chances may be dim if the Supreme Court applies the same logic it used for the Nebraska law. But that logic could change if a justice retires and President Bush succeeds in making an appointment that changes the court’s ideology, said Johnson of the National Right to Life Committee.
“We hope that by time this bill gets to the Supreme Court, there will be five justices who don’t adhere to that extreme position,” Johnson said. “Sometimes justices change their minds. Sometimes the composition of the court changes. Anything can happen.”
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How Midwestern lawmakers voted
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ILLINOIS
Democrats–Costello, Y; Davis, N; Emanuel, N; Evans, N; Gutierrez, N; Jackson, N; Lipinski, Y; Rush, N; Schakowsky, N.
Republicans–Biggert, Y; Crane, Y; Hastert, Y; Hyde, Y; Johnson, Y; Kirk, N; LaHood, Y; Manzullo, Y; Shimkus, Y; Weller, Y.
INDIANA
Democrats–Carson, N; Hill, Y; Visclosky, Y.
Republicans–Burton, not voting; Buyer, Y; Chocola, Y; Hostettler, Y; Pence, Y; Souder, Y.
MICHIGAN
Democrats–Conyers, N; Dingell, Y; Kildee, Y; Kilpatrict, N; Levin, N; Stupak, Y.
Republicans– Camp, Y; Ehlers, Y; Hoekstra, Y; Knollenberg, Y; McCotter, Y; Miller, Y; Rogers, Y; Smith, Y; Upton, Y.
WISCONSIN
Democrats–Baldwin, N; Kind, N; Kleczka, Y; Obey, Y.
Republicans–Green, Y; Petri, Y; Ryan, not voting; Sensenbrenner, Y.