WITH THE 30th anniversary of Roe v. Wade approaching and Republicans in control in Washington, the 108th Congress will likely take up the partial-birth abortion ban passed by the House last July but buried by the Democratic Senate.
“It will be an issue. It will be taken up,” says Douglas Johnson, top lobbyist for the National Right to Life Committee. “I expect to see the Senate deal with it in the new year.”
He expects the new bill to be identical to the one that passed the House last summer. That bill featured two changes from previous bills–changes that respond to the U.S. Supreme Court’s ruling in Stenberg v. Carhart, which overturned a Nebraska law banning the procedure.
The first change is the bill’s definition of partial-birth abortion. The majority opinion in Stenberg found Nebraska’s definition of “partial-birth abortion” was too vague and concluded it could be interpreted to cover not only abortions in which the baby is partially delivered alive before being killed, but also the “dilation and evacuation” method, in which an unborn baby is dismembered while still inside the mother. The five-justice majority in Stenberg supported this method.
To avoid any new claims of confusion, the new bill will explicitly define partial-birth abortion as follows: “The person performing the abortion deliberately and intentionally delivers a living fetus until, in the case if a head-first presentation, the entire fetal head is outside of the body of the mother, or, in the case of breech delivery, any part of the fetal trunk past the navel is outside the body of the mother.”
The second change addresses the “health of the mother” issue. The Court ruled in Stenberg that an abortionist must be able to use partial-birth abortion if it is the method least likely to cause side effects for the mother. The majority reached this result by referring to the findings of late-term abortionist Dr. LeRoy Carhart, who asserted that late-term partial-birth abortion is sometimes the method least likely to cause deleterious side effects.
The new bill will tackle this issue 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 a partial-birth abortion ban. Johnson has said that an early tally shows that 62 incoming senators would support it. And a letter to members of Congress from the NRLC expresses hope that the new bill could satisfy swing-voter Justice Sandra Day O’Connor’s concern that the dilation and evacuation procedure should be excluded from a ban.
Rachel DiCarlo is a staff assistant at The Weekly Standard.
