The US Senate just passed a bill outlawing the "partial birth" abortion procedure. The House of Representatives will surely follow, and this time, the President of the US will sign the bill into law. The bill outlaws a particular abortion procedure, not abortion itself, which is still constitutionally an option. Furthermore, if an abortion is necessary to protect the health of the mother, she can still have one, just not by using this method. Therefore, this is not truly a limitation on abortion per se, but on a particular procedure, one many physicians and the key associations that guide them in this field feel is at times the best way to perform them. An opinion on which the US Supreme Court concurred in Stenberg v Carhart.

A passage of Justice Ginsburg's concurrence is worthy of quotation: "this law does not save any fetus from destruction, for it targets only a method of performing abortion. ["cries of infacticide" aside, this bill technically doesn't save one unborn child] Nor does the statute seek to protect the lives or health of pregnant women. [Also,] the most common method of performing previability second trimester abortions is no less distressing or susceptible to gruesome description." But, as distressing as abortion (and certain other medical procedures) might be, they still are protected. In the words of Judge Posner, "if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue."

I feel the bill at issue does just this and will try to note why in detail below. It is worthwhile to examine how, if one looks under all the rhetoric, iffy this whole law actually is. And how in the long run it is likely to fail, so it is not even that useful to protect the life its promoters are so passionately expressing.

A moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion--an abortion in which a physician delivers an unborn child's body until only the head remains inside the womb, punctures the back of the child's skull with a sharp instrument, and sucks the child's brains out before completing delivery of the dead infant--is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.

Two things. The definition of the procedure given here is not the same one supplied when defining it for reasons of determining what is criminal under this statute. Second, as noted below, the "consensus" is a lot less strong as implied by the proposed law. See also, here, here, and here.

In Stenberg v. Carhart (530 U.S. 914, 932 (2000)), the United States Supreme Court opined `that significant medical authority supports the proposition that in some circumstances, [partial birth abortion] would be the safest procedure' for pregnant women who wish to undergo an abortion. Thus, the Court struck down the State of Nebraska's ban on partial-birth abortion procedures, concluding that it placed an `undue burden' on women seeking abortions because it failed to include an exception for partial-birth abortions deemed necessary to preserve the `health' of the mother.

However, the great weight of evidence presented at the Stenberg trial and other trials challenging partial-birth abortion bans, as well as at extensive Congressional hearings, demonstrates that a partial-birth abortion is never necessary to preserve the health of a woman, poses significant health risks to a woman upon whom the procedure is performed, and is outside of the standard of medical care.

The statute basically states that the Supreme Court wrongly relied on materials and findings of various trial courts that found that the procedure in certain cases does preserve the health of the mother. In summary, the SC found that it:

Furthermore, "the American College of Obstetricians and Gynecologists, in its own amici brief, denies that D&X generally poses risks greater than the alternatives" and that "the suggested alternative procedures involve similar or greater risks of cervical and uterine injury." It concluded that: "the D&X ['partial birth'] procedure can be the most appropriate abortion procedure for some women in some circumstances." The AMA recommends that the procedure not be used unless alternative procedures pose materially greater risk to the woman." Expert testimony noted "another advantage of the Intact D&E is that it eliminates the risk of embolism of cerebral tissue into the woman's blood stream."

There is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures. No controlled studies of partial-birth abortions have been conducted nor have any comparative studies been conducted to demonstrate its safety and efficacy compared to other abortion methods. Furthermore, there have been no articles published in peer-reviewed journals that establish that partial-birth abortions are superior in any way to established abortion procedures. Indeed, unlike other more commonly used abortion procedures, there are currently no medical schools that provide instruction on abortions that include the instruction in partial-birth abortions in their curriculum.

Yes there is ... there is "credible medical evidence," more than that actually, that the procedure is as safe, and in some cases safer than the alternative. And that it is sometimes the best way to protect the health of the mother. So, is it justified for Congress to set in place a national ban?

In fact, the law itself has a "life" exception. If the procedure can be used to save the life of a woman, how can it not be used to protect her health? Are the terms really so clearly divided? How about if there is a serious increase of risk to the woman's ability to have more children if the method isn't used? Is the protection of "potential life" not important in this case? Bluntly put, the courts are very strict on the need of a "health" exception ... it is a fair bet that the law will be declared unconstitutional on these grounds.

`(1) the term `partial-birth abortion' means an abortion in which --

`(A) 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

`(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus

As Justice O'Connor notes in discussing the comparable definition in Stenberg, "By proscribing the most commonly used method for previability second trimester abortions, the statute creates a substantial obstacle to a woman seeking an abortion, and therefore imposes an undue burden on a woman's right to terminate her pregnancy prior to viability." Amendments to limit this procedure to third trimester abortions were rejected. It is broad enough, at least in the eyes of five justices (on this issue, the statute doesn't seem to directly say they were wrong to so determine), to cover abortions that have clearly been protected in the courts in the past.

Again, why not include a limit to third trimester abortions? Fear of doctor error and malfeasance, which makes sense, since the Senate also didn't trust them (and the women themselves) to determine if the procedure was necessary to protect the woman's health. Unfortunately, apparently, the courts disagree. The final word, in the eyes of swing vote Justice O'Connor:

"a ban on partial-birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view."

Instead, we have this act, which will languish in the courts for a few years, be struck down in part or whole, and it will be back to the drawing board. I don't see the benefit to fetal life as this process goes on, do you?

Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both.

The federal government cannot pass a general murder law; so even if you think abortion is murder or that this is infanticide, Congress does not have the power to criminalize it on that grounds alone. So, the Congress is relying on its commerce power to regulate a medical procedure, a field usually considered the realm of the states. The federalist friendly US Supreme Court arguably can strike down the law on this ground alone, namely that this is not in the realm of proper congressional legislation.

[The law also gives the father or (for minors) the mother of the pregnant woman a right to bring a case of action. The woman, not liable under this law, might very well be in a situation of explaining how she decided the procedure was necessary to save her life or health. Perhaps, not, since clearly (by the fiat of the law), she was mistaken to think so.]

This is a ill fated law ... it is passed in good faith, the procedure horrifies many (even some who are "pro-choice"), but this doesn't change the fact that in a limited number of cases it might very well be the safest way to perform a therapeutic abortion. And, the law doesn't ban abortions, it bans an abortion procedure. Furthermore, it is counter to clear Supreme Court precedent, though a more narrowly written bill very well might have been upheld. Finally, Congress is not likely to change the court's mind.

The hope, I guess, is that by the time it reaches the Supreme Court, one of the Stenberg majority will have been replaced. On the other hand, Judge Posner is rather conservative as well, and he too felt a similiar state ban ... bans that do not rise additional federalist concerns ... unconstitutional.

I still feel the ultimate value of this law is rather dubious.