New, Improved Partial-Birth Abortion Ban

On July 24 the House of Representatives voted 274-151 to ban partial-birth abortion ("PBA") for the sixth time. The measure (H.R. 4965) was not taken up by the Senate during the tenure of former Senate Majority Leader Tom Daschle, but is expected to be considered in the next session. A brief recap may be helpful.

In the most infamous PBA method, a living fetus (usually 20 weeks' gestation or older) is removed feet-first from the womb and delivered except for the head. The abortionist pierces the child's skull with scissors, inserts a catheter, sucks out the brain, and completes delivery of the now-dead child. PBA practitioners admit it usually is performed on healthy mothers and babies, for nonmedical reasons.

In 2000 the U.S. Supreme Court found Nebraska's PBA ban unconstitutional, effectively nullifying about 26 similar state bans. The Court cited two "flaws": the definition of PBA (used in most state laws and federal bills) was "vague" and might also outlaw dismemberment abortion, the most common method in later trimesters; and the ban contained no "health" exception. If amended accordingly, Justice Sandra Day O'Connor stated, a ban would be constitutional.

Opponents of PBA were not heartened. The Supreme Court's "health exception" loophole (encompassing "all factors –– physical, emotional, psychological, familial, and the woman's age" that relate to "well-being") permits abortion on request throughout pregnancy. And an overly precise definition of PBA could be easily circumvented. But Rep. Steve Chabot crafted a bill (H.R. 4965) with a new definition, and extensive Congressional findings on the lack of a "health" indication for PBA that could satisfy Justice O'Connor.

Pro-abortion extremists in Congress claim the new definition of PBA is still too "fuzzy" and could include dismemberment abortion. In fact, the definition elicits a painfully concrete image of what is banned –– i.e., only abortions in which: (1) a living fetus is intentionally delivered vaginally to where (a) his head is fully outside the mother's body or (b) if removed feet-first, his trunk past the navel is outside the mother's body; (2) so that an overt act –– other than completing delivery –– can be performed to kill the partially-delivered fetus; and (3) the overt act is done, killing him.

What about a health exception? With the new precise definition of PBA, a health exception makes sense only if one believes killing a child after he is substantially outside his mother's body could affect her health. Also, once a child is mostly delivered, the subsequent act of killing doesn't implicate her "privacy right" to choose to terminate a pregnancy. That pregnancy is mere seconds and inches from being over. Furthermore, evidence compiled from many Congressional hearings shows that PBA is never necessary to preserve a woman's health, but poses even greater risks to the mother.