YESTERDAY, by a vote of 281-142, the House gave final approval to a bill that will ban partial-birth abortion in all 50 states. Bill Clinton vetoed similar bills passed by Congress in 1995 and 1999, but George W. Bush says he will sign the bill into law. But will it hold up before the Supreme Court? While the new bill is identical to one the House passed in July 2002 (but was buried by the Democratic Senate) it features two changes from earlier versions that were added in response to the Supreme Court’s ruling in Stenberg v. Carhart, which overturned a Nebraska law banning the procedure. (The Harkin amendment, an expression of support for Roe v. Wade that was narrowly adopted by the Senate in an early version of the bill this year was dropped from the final bill by the House-Senate Conference Committee Wednesday night.)
The first change is the bill’s definition of partial-birth abortion. In Stenberg the majority opinion found the bill’s definition of the term too vague and ruled that it could be interpreted to cover the “dilation and evacuation” method, in which an unborn baby is dismembered while still inside the mother.
To avoid any new claims of confusion, the bill explicitly defines partial-birth abortion as: “The person performing the abortion deliberately and intentionally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside of the mother, or, in the case of breech delivery, any part of the fetal trunk is outside of the mother.”
The second change addresses the issue of the health of the mother. The Court ruled in Stenberg that an abortionist must be allowed to perform a partial-birth abortion if it is the method least likely to cause side effects for the mother. The majority reached this conclusion by referring to the findings of late-term abortionist Dr. Leroy Carhart, who claims that late term, partial-birth abortion is sometimes the method least likely to cause deleterious side effects.
The new bill takes on this argument by incorporating congressional findings that partial-birth abortion is never necessary to protect a mother’s health and that it may in fact expose a woman to substantial health risks. The bill reads: “Congress finds that partial-birth abortion is never medically indicated to preserve the health of the mother; is in fact unrecognized as a valid abortion procedure by the mainstream medical community; poses additional health risks to the mother; blurs the line between abortion and infanticide in the killing of a partially born child just inches from birth; and confuses the role of the physician in childbirth and should therefore be banned.”
The National Right to Life Committee is optimistic about the future of the ban. Douglas Johnson, the group’s legislative director, says that a final Senate vote on the bill is unlikely until after the fall recess ends in mid-October, but when Congress reconvenes he expects the bill to be supported by 64 or 65 senators.
Rachel DiCarlo is an editorial assistant at The Weekly Standard.
