Partial-Birth Abortion Ban Act
Encyclopedia
The Partial-Birth Abortion Ban Act of 2003 is a United States law
prohibiting a form of late-term abortion
that the Act calls "partial-birth abortion", often referred to in medical literature as intact dilation and extraction
. Under this law, "Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both." The law was enacted in 2003, and in 2007 its constitutionality was upheld by the U.S. Supreme Court, in the case of Gonzales v. Carhart
.
that it names "partial birth abortion". The procedure described in the statute is usually used in the second trimester, from 15 to 26 weeks, some of which occur before and some of which occur after viability. The law itself contains no reference to gestational age or viability. The present statute is directed only at a method of abortion
, rather than at preventing any woman from obtaining an abortion.
The statute includes two findings of Congress:
Despite its finding that "partial-birth abortion ... is ... unnecessary to preserve the health of the mother", the statute includes the following provision:
Hadley Arkes
commented, in an editorial in the National Review
, "[t]hat provision went even further than the law was obliged to go, for as the American Medical Association testified during the hearings, a partial-birth abortion bore no relevance to any measure needed to advance the health of any woman."
Citing the Supreme Court case of Doe v. Bolton
, some pro-life supporters have asserted that the word "health" would render any legal restriction meaningless, because of the broad and vague interpretation of "health". This was of particular concern when it came to anticipated arguments that such a definition would encompass "mental health", which some thought would inevitably be expanded by court decisions to include the prevention of depression or other non-physical conditions. Pro-choice
groups object to this statute primarily because there is no exemption if the health of a woman is at risk.
. The term has been used in numerous state and federal bills and laws, although the legal definition of the term is not always the same. The Partial-Birth Abortion Ban Act defines "partial-birth abortion" as follows:
In the 2000 Supreme Court case of Stenberg v. Carhart
, a Nebraska law banning "partial-birth abortion" was ruled unconstitutional, in part because the language defining "partial-birth abortion" was deemed vague. In 2006, the Supreme Court in Gonzales v. Carhart
found that the 2003 act "departs in material ways" from the Nebraska law and that it pertains only to a specific abortion procedure, intact dilation and extraction
. Some commentators have noted that the Partial-Birth Abortion Ban Act's language was carefully crafted to take into account previous rulings. Although in most cases the procedure legally defined as "partial birth abortion" would be medically defined as "intact dilation and extraction", these overlapping terms do not always coincide. For example, the IDX procedure may be used to remove a deceased fetus (e.g. due to a miscarriage
or feticide
) that is developed enough to require dilation of the cervix for its extraction. Removing a dead fetus does not meet the federal legal definition of "partial-birth abortion," which specifies that partial live delivery must precede "the overt act, other than completion of delivery, that kills the partially delivered living fetus." Additionally, a doctor may extract a fetus past the navel and then "disarticulate at the neck", which could fall within the terms of the statute even though it would not result in an intact body and therefore would not be an intact dilation and extraction.
The GOP led Congress first passed similar laws banning "partial-birth abortion" in December 1995
, and again October 1997, but they were vetoed by President Bill Clinton
.
In the House
, the final legislation was supported in 2003 by 218 Republicans
and 63 Democrats
. It was opposed by 4 Republicans, 137 Democrats, and 1 independent. Twelve members were absent, 7 Republicans and 5 Democrats. In the Senate
the bill was supported by 47 Republicans and 17 Democrats. It was opposed by 3 Republicans, 30 Democrats, and 1 independent. Two Senators were absent, Kay Bailey Hutchison
(R-Tx.), a supporter of the bill, and John Edwards
(D-NC), an opponent of the bill.
The only substantive difference between the House and Senate versions was the Harkin
Amendment expressing support for Roe v. Wade
. A House-Senate conference committee deleted the Harkin Amendment, which therefore is absent from the final legislation. On November 5, 2003, after being passed by both the House and the Senate, the bill was signed by President George W. Bush
to become law.
The constitutionality of the law was challenged immediately after the signing. Three different U.S. district courts
declared the law unconstitutional. All three cited the law's omission of an exception for the health of the woman (as opposed to the life of the woman), and all three decisions cited precedent set by Roe v. Wade
(1973) and Stenberg v. Carhart
(2000). The federal government appealed the district court rulings, which were then affirmed by three courts of appeals. The Supreme Court agreed to hear the Carhart case on February 21, 2006, and agreed to hear the companion Planned Parenthood case on June 19, 2006.
On April 18, 2007 the Supreme Court
in a 5-4 decision, Gonzales v. Carhart
, held that the statute does not violate the Constitution. Justice Anthony Kennedy
wrote for the majority which included Justices Samuel Alito
, Clarence Thomas
, Antonin Scalia
, and Chief Justice John Roberts. Justice Ruth Bader Ginsburg
wrote the dissent which was joined by Stephen Breyer
, David Souter
, and John Paul Stevens
. Kennedy's majority opinion argued that the case differed from Stenberg v. Carhart, a 2000 case in which the Supreme Court struck down a state ban on "partial-birth abortion" as unconstitutional, in that the Partial Birth Abortion Act defined the banned procedure more clearly. In dissent, Ginsburg argued that the decision departed from established abortion jurisprudence, and that lack of a health exception "jeopardizes women’s health and places doctors in an untenable position." The replacement of O'Connor by Alito was identified as a key difference between the 5-4 decision against the Nebraska law in Stenberg and the 5-4 support for the abortion ban in Gonzalez.
poll 4 days after the court's decision found that 40% of respondents "knew the ruling allowed states to place some restrictions on specific abortion procedures." Of those who knew of the decision, 56% agreed with the decision and 32% were opposed. An ABC poll from 2003 found that 62% of respondents thought "partial-birth abortion" should be illegal; a similar number of respondents wanted an exception "if it would prevent a serious threat to the woman's health." Additional polls from 2003 found between 47–70% in favor of banning partial-birth abortions and between 25–40% opposed.
reported that, in response to this statute, many abortion providers had adopted the practice of injecting the fetus with lethal drugs before all late-term abortions. Typically, a concentrated salt solution is injected directly into the fetal heart using ultrasound to guide the needle. Even though these providers do not perform intact dilation and extraction procedures, they feel the broad wording of the ban compels them "to do all they can to protect themselves and their staff from the possibility of being accused."
Law of the United States
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
prohibiting a form of late-term abortion
Late-term abortion
Late termination of pregnancy or late-term abortions are abortions which are performed during a later stage of pregnancy. Late-term abortions are more controversial than abortion in general because the fetus is more developed and sometimes viable.-Definition:A late-term abortion often refers to an...
that the Act calls "partial-birth abortion", often referred to in medical literature as intact dilation and extraction
Intact dilation and extraction
Intact dilation and extraction is a procedure done in late term abortion. It is also known as intact dilation and evacuation, dilation and extraction , intrauterine cranial decompression and, vernacularly in the United States, as partial birth abortion...
. Under this law, "Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both." The law was enacted in 2003, and in 2007 its constitutionality was upheld by the U.S. Supreme Court, in the case of Gonzales v. Carhart
Gonzales v. Carhart
Gonzales v. Carhart, 550 U.S. 124 , is a United States Supreme Court case that upheld the Partial-Birth Abortion Ban Act of 2003. The case reached the high court after U.S. Attorney General Alberto Gonzales appealed a ruling of the United States Court of Appeals for the Eighth Circuit in favor of...
.
Provisions
This statute prohibits a method of abortion in the United StatesAbortion in the United States
Abortion in the United States has been legal in every state since the United States Supreme Court decision in Roe v. Wade, on January 22, 1973...
that it names "partial birth abortion". The procedure described in the statute is usually used in the second trimester, from 15 to 26 weeks, some of which occur before and some of which occur after viability. The law itself contains no reference to gestational age or viability. The present statute is directed only at a method of abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
, rather than at preventing any woman from obtaining an abortion.
The statute includes two findings of Congress:
Despite its finding that "partial-birth abortion ... is ... unnecessary to preserve the health of the mother", the statute includes the following provision:
Hadley Arkes
Hadley Arkes
Hadley P. Arkes is a political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.Arkes received a B.A. degree at the University of Illinois and a Ph.D...
commented, in an editorial in the National Review
National Review
National Review is a biweekly magazine founded by the late author William F. Buckley, Jr., in 1955 and based in New York City. It describes itself as "America's most widely read and influential magazine and web site for conservative news, commentary, and opinion."Although the print version of the...
, "[t]hat provision went even further than the law was obliged to go, for as the American Medical Association testified during the hearings, a partial-birth abortion bore no relevance to any measure needed to advance the health of any woman."
Citing the Supreme Court case of Doe v. Bolton
Doe v. Bolton
Doe v. Bolton, 410 U.S. 179 , was a landmark decision of the United States Supreme Court overturning the abortion law of Georgia. The Supreme Court's decision was released on January 22, 1973, the same day as the decision in the better-known case of Roe v. Wade, 410 U.S...
, some pro-life supporters have asserted that the word "health" would render any legal restriction meaningless, because of the broad and vague interpretation of "health". This was of particular concern when it came to anticipated arguments that such a definition would encompass "mental health", which some thought would inevitably be expanded by court decisions to include the prevention of depression or other non-physical conditions. Pro-choice
Pro-choice
Support for the legalization of abortion is centered around the pro-choice movement, a sociopolitical movement supporting the ethical view that a woman should have the legal right to elective abortion, meaning the right to terminate her pregnancy....
groups object to this statute primarily because there is no exemption if the health of a woman is at risk.
"Partial-birth abortion" defined by law
The term "partial-birth abortion" was first coined by Douglas Johnson of the National Right to Life CommitteeNational Right to Life Committee
The National Right to Life Committee is the oldest and largest pro-life organization in the United States with affiliates in all 50 states and over 3,000 local chapters nationwide. The group works through legislation and education to work against abortion, infanticide, euthanasia and assisted...
. The term has been used in numerous state and federal bills and laws, although the legal definition of the term is not always the same. The Partial-Birth Abortion Ban Act defines "partial-birth abortion" as follows:
In the 2000 Supreme Court case of Stenberg v. Carhart
Stenberg v. Carhart
Stenberg v. Carhart, 530 U.S. 914 , is a case heard by the Supreme Court of the United States dealing with a Nebraska law which made performing partial-birth abortion illegal, except where necessary to save the life of the mother. Nebraska physicians who performed the procedure contrary to the law...
, a Nebraska law banning "partial-birth abortion" was ruled unconstitutional, in part because the language defining "partial-birth abortion" was deemed vague. In 2006, the Supreme Court in Gonzales v. Carhart
Gonzales v. Carhart
Gonzales v. Carhart, 550 U.S. 124 , is a United States Supreme Court case that upheld the Partial-Birth Abortion Ban Act of 2003. The case reached the high court after U.S. Attorney General Alberto Gonzales appealed a ruling of the United States Court of Appeals for the Eighth Circuit in favor of...
found that the 2003 act "departs in material ways" from the Nebraska law and that it pertains only to a specific abortion procedure, intact dilation and extraction
Intact dilation and extraction
Intact dilation and extraction is a procedure done in late term abortion. It is also known as intact dilation and evacuation, dilation and extraction , intrauterine cranial decompression and, vernacularly in the United States, as partial birth abortion...
. Some commentators have noted that the Partial-Birth Abortion Ban Act's language was carefully crafted to take into account previous rulings. Although in most cases the procedure legally defined as "partial birth abortion" would be medically defined as "intact dilation and extraction", these overlapping terms do not always coincide. For example, the IDX procedure may be used to remove a deceased fetus (e.g. due to a miscarriage
Miscarriage
Miscarriage or spontaneous abortion is the spontaneous end of a pregnancy at a stage where the embryo or fetus is incapable of surviving independently, generally defined in humans at prior to 20 weeks of gestation...
or feticide
Feticide
Feticide is an act that causes the death of a fetus. In a legal context, "fetal homicide" or "child destruction" refers to the deliberate or incidental killing of a fetus due to a criminal human act, such as a blow to the abdomen of a pregnant woman...
) that is developed enough to require dilation of the cervix for its extraction. Removing a dead fetus does not meet the federal legal definition of "partial-birth abortion," which specifies that partial live delivery must precede "the overt act, other than completion of delivery, that kills the partially delivered living fetus." Additionally, a doctor may extract a fetus past the navel and then "disarticulate at the neck", which could fall within the terms of the statute even though it would not result in an intact body and therefore would not be an intact dilation and extraction.
Legislative and judicial history
Partial-Birth Abortion Ban Act of 1995
The Partial-Birth Abortion Ban Act was a bill introduced in the Congress of the United States in 1995 by Florida Representative Charles T. Canady which prohibited intact dilation and extraction, sometimes referred to as partial-birth abortion, which the Act described as "an abortion in which the...
, and again October 1997, but they were vetoed by President Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
.
In the House
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
, the final legislation was supported in 2003 by 218 Republicans
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
and 63 Democrats
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
. It was opposed by 4 Republicans, 137 Democrats, and 1 independent. Twelve members were absent, 7 Republicans and 5 Democrats. In the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
the bill was supported by 47 Republicans and 17 Democrats. It was opposed by 3 Republicans, 30 Democrats, and 1 independent. Two Senators were absent, Kay Bailey Hutchison
Kay Bailey Hutchison
Kathryn Ann Bailey Hutchison, known as Kay Bailey Hutchison , is the senior United States Senator from Texas.She is a member of the Republican Party. In 2001, she was named one of the thirty most powerful women in America by Ladies Home Journal. The first woman to represent Texas in the U.S....
(R-Tx.), a supporter of the bill, and John Edwards
John Edwards
Johnny Reid "John" Edwards is an American politician, who served as a U.S. Senator from North Carolina. He was the Democratic nominee for Vice President in 2004, and was a candidate for the Democratic presidential nomination in 2004 and 2008.He defeated incumbent Republican Lauch Faircloth in...
(D-NC), an opponent of the bill.
The only substantive difference between the House and Senate versions was the Harkin
Tom Harkin
Thomas Richard "Tom" Harkin is the junior United States Senator from Iowa and a member of the Democratic Party. He previously served in the United States House of Representatives ....
Amendment expressing support for Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
. A House-Senate conference committee deleted the Harkin Amendment, which therefore is absent from the final legislation. On November 5, 2003, after being passed by both the House and the Senate, the bill was signed by President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
to become law.
The constitutionality of the law was challenged immediately after the signing. Three different U.S. district courts
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
declared the law unconstitutional. All three cited the law's omission of an exception for the health of the woman (as opposed to the life of the woman), and all three decisions cited precedent set by Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
(1973) and Stenberg v. Carhart
Stenberg v. Carhart
Stenberg v. Carhart, 530 U.S. 914 , is a case heard by the Supreme Court of the United States dealing with a Nebraska law which made performing partial-birth abortion illegal, except where necessary to save the life of the mother. Nebraska physicians who performed the procedure contrary to the law...
(2000). The federal government appealed the district court rulings, which were then affirmed by three courts of appeals. The Supreme Court agreed to hear the Carhart case on February 21, 2006, and agreed to hear the companion Planned Parenthood case on June 19, 2006.
On April 18, 2007 the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in a 5-4 decision, Gonzales v. Carhart
Gonzales v. Carhart
Gonzales v. Carhart, 550 U.S. 124 , is a United States Supreme Court case that upheld the Partial-Birth Abortion Ban Act of 2003. The case reached the high court after U.S. Attorney General Alberto Gonzales appealed a ruling of the United States Court of Appeals for the Eighth Circuit in favor of...
, held that the statute does not violate the Constitution. Justice Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
wrote for the majority which included Justices Samuel Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
, Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
, Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, and Chief Justice John Roberts. Justice Ruth Bader Ginsburg
Ruth Bader Ginsburg
Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
wrote the dissent which was joined by Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
, David Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
, and John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
. Kennedy's majority opinion argued that the case differed from Stenberg v. Carhart, a 2000 case in which the Supreme Court struck down a state ban on "partial-birth abortion" as unconstitutional, in that the Partial Birth Abortion Act defined the banned procedure more clearly. In dissent, Ginsburg argued that the decision departed from established abortion jurisprudence, and that lack of a health exception "jeopardizes women’s health and places doctors in an untenable position." The replacement of O'Connor by Alito was identified as a key difference between the 5-4 decision against the Nebraska law in Stenberg and the 5-4 support for the abortion ban in Gonzalez.
Public opinion
A Rasmussen ReportsRasmussen Reports
Rasmussen Reports is an American media company that publishes and distributes information based on public opinion polling. Founded by pollster Scott Rasmussen in 2003, the company updates daily indexes including the President's job approval rating, and provides public opinion data, analysis, and...
poll 4 days after the court's decision found that 40% of respondents "knew the ruling allowed states to place some restrictions on specific abortion procedures." Of those who knew of the decision, 56% agreed with the decision and 32% were opposed. An ABC poll from 2003 found that 62% of respondents thought "partial-birth abortion" should be illegal; a similar number of respondents wanted an exception "if it would prevent a serious threat to the woman's health." Additional polls from 2003 found between 47–70% in favor of banning partial-birth abortions and between 25–40% opposed.
Effect
A 2007 article in The Boston GlobeThe Boston Globe
The Boston Globe is an American daily newspaper based in Boston, Massachusetts. The Boston Globe has been owned by The New York Times Company since 1993...
reported that, in response to this statute, many abortion providers had adopted the practice of injecting the fetus with lethal drugs before all late-term abortions. Typically, a concentrated salt solution is injected directly into the fetal heart using ultrasound to guide the needle. Even though these providers do not perform intact dilation and extraction procedures, they feel the broad wording of the ban compels them "to do all they can to protect themselves and their staff from the possibility of being accused."
External links
- ReligiousTolerance.org: D&X Procedure (aka Partial Birth Abortion) - All sides
- About.com's Pros & Cons of Partial Birth Abortion
- NRLC archive on the partial-birth abortion issue from 1995 to date.
- American Right To Life's list of dozens of anti-abortion leaders who condemned the PBA "ban" as a scam.
- Gina Gonzales as told to Barry Yeoman, "I Had An Abortion When I Was Six Months Pregnant," Glamour