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Under Roe v. Wade, the 1973 U.S. Supreme Court decision that made abortion legal, a woman’s decision to have an abortion in the first two trimesters of pregnancy is legal. In the case of late-term abortions, in the third trimester, or roughly after fetal viability, states may regulate or even proscribe abortion except where it’s necessary to save the life or health of the woman. Ever since 1973, those who oppose the right to choose safe and legal abortion have been plotting to overturn Roe v. Wade, despite the fact that late-term abortions may be limited by states except where continuing the pregnancy jeopardizes a woman’s life or health.
A so-called “partial birth” abortion ban that just passed the U.S. Senate and ostensibly bans a particular type of late-term abortion procedure. However, the ban contains no mention of the stage of pregnancy to which the ban applies in the legislation – not viability, weeks of gestation, or number of trimesters. The definition of so-called “partial birth” abortion in the bill is so broad that it can be interpreted to ban all abortion. The ban passed the U.S. House and U.S. Senate by wide margins, will soon be signed by George W. Bush and will become the law of the land unless pro-choice forces have the law enjoined.
With a few exceptions, many in the pro-choice community, Congress and the mainstream media continued for more than eight years to debate the issue on terms offered by anti-abortion advocates, talking in graphic terms about late-term abortion, instead of pointing out that these bans were simply a pretext for banning all abortion. The passage of the ban was due in no small part to this deliberate, avoidance strategy on the part of many prominent, national leaders. The pro-choice forces lost both the legislative and public opinion battles.
The Anti-abortion Activist’s Dream Begins
The scenario that anti-choice advocated hope will occur when this legislation becomes the law of the United States, goes something like this:
Despite efforts to the contrary, the pro-choice community is unable to enjoin the ban and it takes effect. Then one of the nine Justices on the United States Supreme Court retires. George W. Bush’s singular criterion for filling the vacancy is that the new Justice will vote to overturn Roe v. Wade, outlawing abortion. Democrats in the U.S. Senate lose their nerve and tire of fighting and they confirm Bush’s nominee. The vote on the Supreme Court before the new nominee is confirmed, is 5-4 to uphold Roe v. Wade. With the new nominee, the vote is 5-4 to overturn that landmark decision, given the right case. Even if more than one Justice were needed to overturn Roe, the same scenario applies.
The local, anti-abortion prosecutor in Utah has the neighborhood physician arrested, proposing life imprisonment, for performing an early abortion using standard methods. The anti-abortion prosecutor charges the doctor with performing a “partial birth” abortion. The pro-choice advocates file a case asking for the doctor’s release saying that the abortion performed by the doctor was not a “partial birth” abortion, because it was done early in pregnancy and used standard procedures that do not fit the definition of so-called, “partial birth” abortion.
The case goes to court where the anti-abortion prosecutor argues that after all, the legislation that bans “partial birth” abortion does not mention any stage of pregnancy to which the ban applies, so it is irrelevant that the doctor performed an early abortion. The doctor is liable for abortions performed at any stage of pregnancy, they argue. The anti-abortion advocates contend that their definition of “partial birth” abortion is broad enough to include all types of abortion, that in fact any doctor who performs any abortion at any stage of pregnancy is liable for prosecution under the so-called “partial birth” abortion ban.
Anti-abortion advocates offer examples from history that help to prove their case. They remind the judge that on May 14, 1998 every abortion clinic in Wisconsin ceased operations when a federal judge refused to block a state law banning “partial birth” abortion. Doctors said the ban was so broad that they could face life imprisonment for performing any abortion at any stage of pregnancy — even for those using standard methods early in pregnancy.
The case makes its way through the conservative, federal court system to the United States Supreme Court. As a part of their case, anti-abortion advocates present an actual letter, dated March 18, 1996, written by six staunchly anti-abortion U.S. Congressmen including Henry Hyde, Charles Canady and James Sensenbrenner on an earlier version of the bill: “H.R. 1833 does not ban ‘D&X’ or ‘Brain Suction’ abortions…the ban would have the effect of prohibiting any abortion [that meets our definition]…no matter what the abortionist decides to call his particular technique.” They use this letter to show that the legislative history proves that it was their intent since the beginning to ban all abortion.
Anti-abortion advocates tell the Supreme Court to look at the definition of partial birth abortion from the legislation. In that bill, S3, 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…”
While the definition may seem to apply to a specific, late-term abortion procedure, anti-abortion advocates believe that all fetuses, at all stages of development are “living,” from the moment of conception. In all vaginal abortions, at all stages of pregnancy, the fetus comes outside of the woman’s body either head-first or in a breech presentation. They believe that all abortions, at all stages of pregnancy constitute “an overt act of intentional killing,” regardless of the reason for the abortion. So in their minds, all abortions, at all stages of pregnancy fit the definition in the “partial birth” abortion ban.
They claim that if anti-abortion leaders had wanted to ban a particular type of late-term abortion procedure, they could have done that by specifying a stage of pregnancy and naming particular procedures with standard medical terminology. They consciously chose a definition that can be interpreted to broadly ban abortion. Moreover, they argue, the vote in favor of the ban in the U.S. Congress was overwhelming, demonstrating strong support for making all abortion illegal.
The Justices deliberate. A majority of Justices do not care about 30 years of precedent supporting constitutional protection of the right to choose safe and legal abortion. They are looking for a justification for making abortion illegal. They feel this case gives them strong grounds on which to justify their positions. After all, they saw the Justices who made the decision in Roe v. Wade as activists. Now it is their turn. The court room is packed with advocates for and against the right to choose safe and legal abortion. They wait. The tension in the air is palpable as they breathlessly await the decision of the Supreme Court. The gavel comes down in what seems like slow motion and Roe v. Wade is….overturned?
The right to choose safe and legal abortion vanishes. Women are hurled backwards into the dark days when women who need access to safe abortion services must once again risk their lives and health to get it. Children whose mothers are not fortunate enough to get an abortion safely will lose their mothers. The woman who bleeds to death from a botched abortion could be your sister, your best friend, your daughter or your favorite aunt. Those who seek abortion and do not die, suffer hideous infections from non-sterile instruments along with the permanent adverse health effects and personal stigma of illegal abortion.
Teenage pregnancy soars. The number of unwanted, abandoned, homeless and hungry children skyrockets. Women and girls who have been raped will have to carry those pregnancies to term. Women who are successful in getting a safe abortion procedure in a doctor’s office must consent to permanent sterilization as a condition of the abortion. Those women risk life imprisonment. Women’s education, career options and personal freedom are curtailed because they are pregnant for their entire reproductive lives. Women cannot make reproductive choices that are fundamental to their lives and dignity. Only the wealthy can escape with their dignity because they always have, and always will have access to safe abortion.
How could this have happened?
Copyright held by KARYN STRICKLER who is the former executive director of the Maryland affiliate of the National Abortion Rights Action League that fought for codification of the the principles of Roe v. Wade into state law. She led an effort to defeat so-called “partial birth” abortion in Maryland in 1998 and to educate the media and pro-choice leaders across the country on the issue.