What does the "Partial-Birth abortion ban" actually ban?

WARNING! This post contains clinical descriptions of some abortion procedures. Some folks, understandably, find that sort of thing disturbing to read. Don’t read the rest of this post unless you think you can deal… If you just want the “key points” of this post, Lying Media Bastards has summed it up.

I’ll be doing a few more posts about S.3, the Partial Birth Abortion Ban Act of 2003 this week, so I hope y’all have patience. Let’s start with Diotima’s question. NOW and other groups opposed to the PBA Ban claim:

This complaint had more merit the previous two times Congress passed PBA bans; the current incarnation contains a less vague definition of what a “partial birth abortion” is. So, to some extent, NOW is either being hyperbolic or using outdated boilerplate language from years past. But just because they’re exaggerating doesn’t make them wrong.

I want to examine how this bill defines “PBA,” but first of all, let’s note what’s not in the bill. At no point does the bill mention “intact dilation and extraction” (D&X), which is the medical name for the procedure this law is supposedly aimed at banning. (“Partial birth abortion” is a term made up by pro-life partisans, with no medical meaning). Particularly since a major reason past PBA bans have been overturned is the vagueness of the term, why don’t the pro-lifers use the actual name of the procedure they wish to ban?

Well, because they don’t want to ban that procedure – and, as I will show, this bill specifically avoids banning D&X. This bill’s advocates want a vague bill that will help erode Roe; a tightly-crafted, narrow bill aimed precisely at one procedure wouldn’t serve that purpose.

Similarly, the terms “viability,” “late term,” and “trimester” don’t appear anywhere in this bill. Why not? If, as pro-lifers claim, the point of this bill isn’t to sneak an attack on abortion at every stage – including pre-viability – into the law, then why don’t they clear this up by simply writing a provision limiting the law’s effect to post-viability, or to the third trimester, or whatever?

Pro-lifers are unable to achieve their legislative goals except through deception and lying. If they wanted to ban D&X abortions post-viability, they could have simply written a law saying so. But they’ve deliberately avoided writing such a law, in favor of a deliberately ambiguous law.

So that’s what the bill doesn’t say, but what does it say? Here’s how the PBA Ban defines its key term:

The first thing to note is that language about “a head-first presentation”: the law apparently requires “the entire fetal head” to be “outside the body of the mother” before “the overt act” (whatever that vague term means) that kills the fetus is performed. Many supporters of this law claim that the ban is aimed at late-term abortions, but that’s not possible. This passage makes it clear that the ban is aimed at pre-viability abortions – abortions in the first four months of pregnancy. Why? Because no doctor would bring “the entire fetal head” outside of the body after the 16th week of pregnancy; at that point, the head is typically too large to be extracted without risk to the mother. Instead, doctors typically compress the skull – either by crushing it with forceps, or by removing the skull’s contents – before the head goes outside the mother’s body. Presumably, crushing or draining the skull is an “overt act” that kills the fetus – and in D&X, that’s done before “the entire fetal head” is outside of the mother’s body.

This is worth emphasizing: As defined by the Act itself, the only head-first abortions that could be considered “Partial-Birth abortions” take place in the first four months of pregnancy, well before viability. This is not an act aimed at late-term abortions, or at protecting post-viability fetuses.

So what would be banned?

A few actual D&X abortions would be banned (those that involved a feet-first presentation, for example). But also many ordinary D&E abortions – and D&E abortions are among the most common, safest abortions available. (D&X is technically a subcatagory of D&E, by the way. D&E stands for “dialation and evacuation.”)

Here’s how the brief of Dr. Carhart (in Stenberg v. Carhart) describes the D&E proceedure:.

So in a D&E abortion, the doctor draws the “living fetus” out of the uterus, into the vagina and out of the mother’s body. In the not-uncommon case in which the fetus remains relatively intact until it’s partly out of the mother’s body (either head-outside in a head-first presentation, or outside to the navel in a breech presentation), the doctor will be in trouble. Continuing to pull the fetus out of the body will cause dismemberment – an “overt act” that the doctor “knows will kill the partially delivered living fetus.” Suddenly, the doctor’s a criminal; she’s facing the loss of her medical license, plus up to two years in prison.

Let’s review: what would this law do?

It would not ban all D&X abortions. In fact, the language of the bill may exempt head-first D&X abortions from the ban – even though the bill’s proponents have often claimed that their intent is to ban D&X abortions.

It would, potentially, ban many D&E abortions. D&E is the procedure used for 96% of second-trimester abortions in the United States.

So why does this matter?

Well, it helps explain why this bill is almost certainly unconstitutional.

The most important case to look at is Stenberg v. Carhart, the case in which the Supreme Court, by a 5-4 vote, overturned Nebraska’s PBA ban. In particular, it’s important to look at O’Connor’s concurrence, because O’Connor is the most likely swing vote for this case. But O’Connor made it clear that laws banning D&E abortions – as this law seems to – are unconstitutional.

So that’s one way in which the PBA ban is unconstitutional. I’ll blog later this week on the second way in which the new PBA ban is unconstitutional – that it makes no exception to protect the health of the mother.

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