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Senate Abortion Vote Draws Battle Lines

Lawsuits certain over ban on 'partial birth' procedure

WEDNESDAY, Oct. 22, 2003 (HealthDayNews) -- The lines have been drawn in the battle over so-called "partial-birth abortion," the procedure the U.S. Senate voted overwhelmingly to ban on Tuesday.

The American Civil Liberties Union (ACLU) has vowed to challenge the bill in court. Calling the ban a "deceptive and dangerous measure that sacrifices women's health and rights for political gain," the organization said it would be filing on behalf of the National Abortion Federation (NAF) and several individual physicians.

The U.S. Conference of Catholic Bishops, on the other hand, hailed the Senate action. In a prepared statement, Gail Quinn, executive director of the group's Secretariat for Pro-Life Activities, called the abortion practice the bill bans "cruel and unjust. No human child should be subjected to such a brutal death. No woman should have to endure a partial-birth abortion. No society that considers itself civilized should allow it."

The bill, which President Bush is expected to sign into law as early as next week, is the first federal ban on an abortion procedure and the strongest action taken on the issue since Roe v. Wade, the 1973 Supreme Court decision that affirmed a woman's right to end a pregnancy.

"This is very important legislation that will end an abhorrent practice and continue to build a culture of life in America," Bush said in a statement.

A critical issue of contention between the two sides centers on what procedures are covered in the measure. Opponents of the ban maintain the ruling bars all or almost all second-trimester procedures, while proponents maintain the measure is a ban on a specific procedure.

The bill defines "partial-birth abortion" as one in which "the person performing the abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus."

Anyone who "knowingly performs" such a procedure could be imprisoned for up to two years and/or fined.

The legal challenges will be hinging their arguments on a three-year-old U.S. Supreme Court decision that rejected a similar law in Nebraska. That law was struck down on two grounds: that the law was written too broadly and that it did not include exceptions for women's health.

"Those same exact two flaws plague this current federal legislation," says Talcott Camp, deputy director of the ACLU's Reproductive Freedom Project in New York City .

"The language of the Nebraska ban clearly covered dilation and evacuation procedures in general, not any specific kind of D&E," Camp says. "In general, this procedure is used in over 90 percent of abortions after the first trimester, well before fetal viability."

"[The current legislation] does not define any particular procedure. It would ban procedures used in over 90 percent of second-trimester abortions, well before fetal viability," Camp adds. "Even if it were a narrow ban, it would still fail constitutional standards because it just blatantly disregards women's health."

Many physicians oppose the measure because it takes discretion out of the hands of the clinician. "In traditional terms, a patient who has a perceived problem and comes to me for help in the past, my obligation has been to do the best thing that I know how to do for her given my skills, my training and my understanding of the evidence in the medical literature," says Dr. Paul Blumenthal, an associate professor of obstetrics and gynecology at Johns Hopkins University in Baltimore. "That's just not the case anymore. It is very much as if [U.S. Attorney General] John Ashcroft is in the room with us and I have to do what he thinks I should do."

"We used to do it other ways, but the research showed us that in the clinical institutions that require it, the techniques which are now being criminalized are actually safest for the woman. So if that's first-rate medical care, now Congress is mandating second-rate care," Blumenthal adds.

The ACLU's case will be filed in federal court on behalf of the NAF, an organization that runs 400 centers at which half of the 1.2 million abortions in the United States are performed each year. Other suits are being brought by the Center for Reproductive Rights in New York and the Planned Parenthood Federation of America.

Both sides expect the court rulings will eventually work their way up to the Supreme Court.

Proponents of the ban hope Bush will have time to stack the Supreme Court before the case gets there, The New York Times reports.

Opponents take a different view. "Only the court has the power to decide, but there is a binding Supreme Court precedent from three years ago holding that the U.S. Constitution, the absolute supreme law of the land, forbids this kind of endangerment of women's health and disregard for women's well-being," Camp says. "So I'm walking in pretty confident."

The ban, which passed in the Senate on a 64-34 vote, won support from both parties, with 17 Democrats voting for it. Support among women members of the Senate was much weaker, though: Only four of 14 voted yes. Sen. Kay Bailey Hutchison (R-Tex.) did not vote.

The measure was passed by the House of Representatives three weeks ago in a 281-142 vote.

More information

For more on the ban, visit the Library of Congress. Learn more about abortion at the Alan Guttmacher Institute.

SOURCES: Talcott Camp, deputy director, Reproductive Freedom Project, American Civil Liberties Union, New York City; Paul Blumenthal, M.D., associate professor of obstetrics and gynecology, John Hopkins University, Baltimore; U.S. Conference of Catholic Bishops statement; Oct. 22, 2003, The New York Times; statement, Pro-Life Activities of the United States Conference of Catholic Bishops; Library of Congress; U.S. Senate
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