Passed the House on June 4, 2003 (282–139 as H.R. 760, inserted in lieu by unanimous consent)
Reported by the joint conference committee on September 30, 2003; agreed to by the House on October 2, 2003 (281–142) and by the Senate on October 21, 2003 (64–34)
Signed into law by President George W. Bush on November 5, 2003
This statute prohibits a method of abortion; the statute calls the prohibited method "partial birth abortion". The procedure described in the statute is used in the second trimester,[3] from 15 to 26 weeks, most of which occurs before viability. The law itself contains no reference to gestational age or viability. The statute is directed only at a method of abortion, rather than at preventing any woman from obtaining an abortion.[4]
The statute includes two findings of Congress:
(1) A moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion ... is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.
(2) Rather than being an abortion procedure that is embraced by the medical community, particularly among physicians who routinely perform other abortion procedures, partial-birth abortion remains a disfavored procedure that is not only unnecessary to preserve the health of the mother, but in fact poses serious risks to the long-term health of women and in some circumstances, their lives. As a result, at least 27 States banned the procedure as did the United States Congress which voted to ban the procedure during the 104th, 105th, and 106th Congresses.
The statute also provides that:
A defendant accused of an offense under this section may seek a hearing before the State Medical Board on whether the physician's conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
Hadley Arkes commented, in an editorial in the National Review, "[t]hat provision went even further than the law was obliged to go, for as the American Medical Association testified during the hearings, a partial-birth abortion bore no relevance to any measure needed to advance the health of any woman."[5]
Citing the Supreme Court case of Doe v. Bolton (1973), some pro-life supporters have asserted that the word "health" would render any legal restriction meaningless, because of the broad and vague interpretation of "health".[6] This was of particular concern when it came to anticipated arguments that such a definition would encompass "mental health", which some thought would inevitably be expanded by court decisions to include the prevention of depression or other non-physical conditions. Pro-choice groups object to this statute primarily because there is no exemption if the health of a woman is at risk.[7]
Partial-birth abortion defined by law
The phrase "partial-birth abortion" was first coined by Douglas Johnson of the National Right to Life Committee.[8] The phrase has been used in numerous state and federal bills and laws, although the legal definition of the term is not always the same. The Partial-Birth Abortion Ban Act defines "partial-birth abortion" as follows:
An abortion 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; and performs the overt act, other than completion of delivery, that kills the partially delivered living fetus. (18 U.S. Code 1531)
In the 2000 Supreme Court case of Stenberg v. Carhart, a Nebraska law banning partial-birth abortion was ruled unconstitutional, in part because the language defining "partial-birth abortion" was deemed vague.[9] In 2006, the Supreme Court in Gonzales v. Carhart found that the 2003 act "departs in material ways" from the Nebraska law and that it pertains only to a specific abortion procedure, intact dilation and extraction.[2] Some commentators have noted that the Partial-Birth Abortion Ban Act's language was carefully crafted to take into account previous rulings.[10] Although in most cases the procedure legally defined as "partial birth abortion" would be medically defined as "intact dilation and extraction", these overlapping terms do not always coincide. For example, the IDX procedure may be used to remove a deceased fetus (e.g. due to a miscarriage or feticide) that is developed enough to require dilation of the cervix for its extraction.[11] Removing a dead fetus does not meet the federal legal definition of "partial-birth abortion", which specifies that partial live delivery must precede "the overt act, other than completion of delivery, that kills the partially delivered living fetus".[12] Additionally, a doctor may extract a fetus past the navel and then "disarticulate [i.e. decapitate] at the neck", which could fall within the terms of the statute even though it would not result in an intact body and therefore would not be an intact dilation and extraction.[13]
Legislative and judicial history
George W. Bush signing the Partial-Birth Abortion Ban Act of 2003, surrounded by members of Congress
In the House, the final legislation was supported in 2003 by 218 Republicans and 63 Democrats. It was opposed by 4 Republicans, 137 Democrats, and 1 independent. Twelve members were absent, 7 Republicans and 5 Democrats.[15] In the Senate the bill was supported by 47 Republicans and 17 Democrats. It was opposed by 3 Republicans, 30 Democrats, and 1 independent.[16] Two Senators were absent, Kay Bailey Hutchison (R-TX), a supporter of the bill, and John Edwards (D-NC), an opponent of the bill.
The only substantive difference between the House and Senate versions was the Harkin Amendment expressing support for Roe v. Wade.[17] A House–Senate conference committee deleted the Harkin Amendment, which therefore is absent from the final legislation.[1] On November 5, 2003, after being passed by both the House and the Senate, the bill was signed by President George W. Bush to become law.
The constitutionality of the law was challenged immediately after the signing. Three different U.S. district courts declared the law unconstitutional.[18][19][20] All three cited the law's omission of an exception for the health of the woman (as opposed to the life of the woman), and all three decisions cited precedent set by Roe v. Wade (1973) and Stenberg v. Carhart (2000). The federal government appealed the district court rulings, which were then affirmed by three courts of appeals.[21][22][23] The Supreme Court agreed to hear the Carhart case on February 21, 2006,[24] and agreed to hear the companion Planned Parenthood case on June 19, 2006.[25]
On April 18, 2007, the Supreme Court in a 5–4 decision, Gonzales v. Carhart, held that the statute does not violate the Constitution. Justice Anthony Kennedy wrote for the majority which included Justices Samuel Alito, Clarence Thomas, Antonin Scalia, and Chief Justice John Roberts. Justice Ruth Bader Ginsburg wrote the dissent which was joined by Stephen Breyer, David Souter, and John Paul Stevens.[26] Kennedy's majority opinion argued that the case differed from Stenberg v. Carhart, a 2000 case in which the Supreme Court struck down a state ban on partial-birth abortion as unconstitutional, in that the Partial Birth Abortion Act defined the banned procedure more clearly. In dissent, Ginsburg argued that the decision departed from established abortion jurisprudence, and that lack of a health exception "jeopardizes women’s health and places doctors in an untenable position". The replacement of O'Connor by Alito was identified as a key difference between the 5–4 decision against the Nebraska law in Stenberg and the 5–4 support for the abortion ban in Gonzales.[27]
A Rasmussen Reports poll four days after the court's decision found that 40% of respondents "knew the ruling allowed states to place some restrictions on specific abortion procedures". Of those who knew of the decision, 66% agreed with the decision and 32% were opposed.[28] An ABC poll from 2003 found that 62% of respondents thought partial-birth abortion should be illegal; a similar number of respondents wanted an exception "if it would prevent a serious threat to the woman's health". Additional polls from 2003 found between 60–75% in favor of banning partial-birth abortions and between 25–40% opposed.[29]
Clinical response
In response to this statute, many abortion providers have adopted the practice of inducing fetal demise before beginning late-term abortions. Typically, a solution of potassium chloride or digoxin is injected directly into the fetal heart using ultrasound to guide the needle.[30][31] This is often done by providers who do not perform intact dilation and extraction procedures (as well as by those who do) because they feel the broad wording of the ban compels them "to do all they can to protect themselves and their staff from the possibility of being accused".[32]
^ abGonzales v. Carhart, 550 U.S. 124 (2007). Findlaw.com. Retrieved 2007-04-19. ("The medical community has not reached unanimity on the appropriate name for this D&E variation. It has been referred to as 'intact D&E', 'dilation and extraction' (D&X), and 'intact D&X' ... For discussion purposes this D&E variation will be referred to as intact D&E. ... A straightforward reading of the Act's text demonstrates its purpose and the scope of its provisions: It regulates and proscribes, with exceptions or qualifications to be discussed, performing the intact D&E procedure.")
^Stenberg v. Carhart, 530 U.S. 914 (2000), in which the Court stated: "In sum, using this law some present prosecutors and future Attorneys General may choose to pursue physicians who use D&E procedures, the most commonly used method for performing previability second trimester abortions."
^See Stenberg v. Carhart, 530 U.S. 914 (2000), in which Justice Ginsburg stated in concurrence: "As the Court observes, this law does not save any fetus from destruction, for it targets only 'a method of performing abortion'."
^Gonzales v. Carhart, 550 U.S. ____ (2007). Findlaw.com. Retrieved 2007-04-30. ("If the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure.")
^Maureen L. Rurka, "The vagueness of partial-birth abortion bans: deconstruction or destruction?." Journal of Criminal Law and Criminology 89.4 (1999): 1233-1268. Online
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