In spite of the strong vote in the House of Representatives against third-trimester, "partial-birth" abortions, a presidential veto may set back this first effort by Congress to prohibit an abortion procedure.
On November 1, the House approved the ban with a two-thirds majority (288 to 139). The Senate, however, delayed a vote on its version of the bill November 8 by sending it to the Judiciary Committee, where it is uncertain what amendments, if any, will be attached to the bill before it returns to the Senate floor this month.
Arlen Specter (R-Pa.) led the effort to scuttle the bill in the Senate. He and two other Judiciary Committee members, Alan K. Simpson (R-Wyo.) and Hank Brown (R-Colo.), are expected to attempt to gut the bill by amending it to include an exception for the mother's health. Many courts have interpreted the mother's "health" to include the psychological well-being of the mother, which can be applied to virtually all abortions. The House version of the bill, sponsored by Charles Canady (R-Fla.), makes an exception only when there is "reasonable doubt" that the mother's "life" is in danger.
Robert C. Smith (R-N.H.), sponsor of the Senate version, says opponents of the bill are trying to dilute the gruesome reality of partial-birth abortions. "They don't want to see what happens in this grisly, disgusting procedure," he says. "They don't want the American people to see it."
Smith says proponents of the bill are using the delay to build support to ban this abortion technique. "The more people see of this procedure, the less they like it," he says. As Smith described the procedure in detail, women walked off the Senate floor, and gallery visitors winced and covered their ears.
ENDING A LIFE: Partial-birth abortion, also known as dilation and extraction ("D and X"), is a procedure for ending late-term pregnancies: The mother visits the abortion facility on three successive days. On the first two days, her cervix is mechanically dilated. On the third day, the abortionist extracts the baby, feet first, from the womb and through the birth canal until all but the head is exposed. Then the tips of surgical scissors are thrust into the base of the baby's skull, and a suction catheter is inserted through the opening and the brain is removed, collapsing the skull and making it easier to deliver.
Opponents of the legislation charge it is part of a pro-life strategy to overturn abortion rights. In Washington, press conferences have been held to defend the procedure on the basis of its usefulness in ending pregnancies in cases of severe fetal deformity. In addition, some liberal columnists have defended it. Ellen Goodman, in a mid-November column, commented that the procedure is "sometimes the best of the rotten options—the one that may best enable a woman to have another baby."
Officially, the American Medical Association (AMA) is neutral on whether to ban the procedure, even though an AMA study committee has endorsed the ban.
Two physicians, Martin Haskell of Dayton, Ohio, and James McMahon of Los Angeles (who died Oct. 28), have openly acknowledged performing partial-birth abortions. Haskell told American Medical News in a 1993 interview that about 80 percent of his D and X abortions are "purely elective."
McMahon indicated in his report to Congress that even in the "nonelective" abortions he performs, his criteria are very liberal, including maternal depression, maternal youth, and non-life-threatening fetal deformities such as cleft palate.
Haskell said he performs partial-birth abortions until 26 weeks of gestation. McMahon had said he performed these abortions through 40 weeks. Both confirmed the majority of babies are alive until near the conclusion of the abortion.
MEDICALLY NECESSARY? Bill Frist (R-Tenn.), the only physician in the Senate, says he has widely consulted with medical colleagues and found none who believes the procedure is necessary.
Prof. Watson Bowes of the University of North Carolina at Chapel Hill and Pamela Smith, head of the obstetrics teaching program at Mount Sinai Hospital in Chicago, confirmed that partial-birth abortions are not necessary even to save the mother's life, although the bill as passed in the House makes allowance for that circumstance.
Clarke Forsythe, president of Americans United for Life in Chicago, agrees: "There is no medical procedure or medical condition in this country which would justify the use of the partial-birth abortion procedure. It's not needed to address any clinical dangers or condition that a woman might have."
There are conflicting data on how often the procedure is used since many states do not require doctors to report abortions. The National Abortion Federation estimates only about 450 of the 1.5 million abortions performed each year are partial-birth abortions. But Haskell and McMahon alone admitted to performing at least that many partial-birth abortions per year. Former Surgeon General C. Everett Koop estimated in 1984 that 4,000 third-trimester abortions are performed annually.
"Even though this bill may cut back on only a few thousand abortions a year, that's a few thousand children," Forsythe says. "Each abortion is important, and each saved life is important."
Under the Partial-birth Abortion Ban Act, doctors performing the procedure would be sentenced to up to two years in prison and fined up to $250,000.
Parents and grandparents of minors would be able to sue doctors who use the technique. Women who undergo the procedure could not be prosecuted.
VETO THREAT: On November 7, the White House issued a statement saying President Clinton would not support the bill because "it fails to provide for consideration of the need to preserve the life and health of the mother, consistent with the Supreme Court's decision in Roe v. Wade."
Douglas Johnson, legislative director for the National Right to Life Committee in Washington, D.C., says he hopes Clinton will reconsider should the bill reach his desk. Overturning the President's veto would require a two-thirds majority in Congress, which has already been obtained in the House but would be difficult in the Senate.
If passed, supporters believe the bill could be upheld by the Supreme Court without disturbing the 1973 Roe v. Wade decision, which said "the unborn fetus is not a person" under the Constitution.
"Most Americans wrongly believe that Roe legalized abortion only in the first three months of pregnancy," Johnson says. "It is a great revelation to many Americans that a procedure like this partial-birth abortion could be legal."
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