Background: This legislation bans a particularly brutal and inhumane abortion method in which the child is removed from the womb feet-first and delivered except for the head. The abortionist thrusts scissors into the base of the child’s skull, inserts a catheter through the opening, and suctions out the child’s brain. This procedure is never medically necessary. Many recognize partial-birth abortion for what it is: infanticide. In a recent survey, Planned Parenthood’s Alan Guttmacher Institute reported that from 1996 to 2000 the number of partial-birth abortions (what they call “D & X” abortions) increased threefold – from about 650 in 1996 to about 2,200 in 2,000. These figures are low. In 1997, Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers, said that in the majority of cases the procedure is performed on health mothers with healthy babies and he estimated then that 4-5,000 were performed annually.
The Partial-Birth Abortion Ban Act was previously approved by the 104th and 105th Congresses. The bills were vetoed by President Clinton, the House overriding the vetoes and the Senate failing, though by increasingly narrow margins. Action on a bill in the 106th Congress was stalled when the U.S. Supreme Court issued its Stenberg v. Carhart opinion (6/28/2000), in which it declared Nebraska’s partial-birth abortion ban law unconstitutional.
In 2002, the House repassed the measure. In response to the Court’s Carhart ruling, the bill contained a more precise definition of partial-birth abortion and incorporated Congress’s factual findings that partial-birth abortion is never necessary to preserve the health of a woman. In regard to the health question, the Supreme Court in Carhart was required to accept the erroneous factual findings of the lower trial court. Congress, however, possesses an independent authority to reach findings of fact. Even though the Partial-Birth Abortion Ban Act was placed on the Senate calendar in 2002, several Senators objected to a unanimous consent agreement to proceed.
House: On February 13, 2003, Rep. Steve Chabot (R-OH) introduced the Partial-Birth Abortion Ban Act of 2003 (H.R. 760). This measure had 161 cosponsors and was referred to the Judiciary Committee. H.R. 760 is the same as H.R. 4965, the revised bill passed by the House in 2002 by the vote 274-yes, 151-no.
H.R. 760 contains an extensive section on “Findings.” “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” (Sec. 2(1)). For these reasons, Congress and at least 27 states banned the procedure.
In Stenberg v. Carhart, the U.S. Supreme Court was required to rely on the very questionable factual finding of the district court that partial-birth abortion was statistically and medically as safe as, and in many circumstances safer than, alternative abortion procedures. However, the great weight of evidence demonstrates that a partial-birth abortion is never necessary to preserve the woman’s health, poses significant health risks to the woman, and is outside the standard of medical care.
Under well-settled Supreme Court jurisprudence, Congress “is not bound to accept the same factual findings that the Supreme Court was bound to accept in Stenberg under the ‘clearly erroneous’ standard” (Sec. 2(8)). Congress is entitled to reach its own factual findings “and to enact legislation based on these findings so long as it seeks to pursue a legitimate interest that is within the scope of the Constitution, and draws reasonable inferences based upon substantial evidence” (Sec. 2 (8)).
Thus, relying on a full range of factual findings, 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” (Sec. 2 (14) (O)).
To the U.S. Code, Title 18, H.R. 760 adds Chapter 74 – Partial-Birth Abortions, Sec. 1531. The bill provides that a physician who performs a partial-birth abortion shall be fined or imprisoned not more than two years, or both, except when a partial-birth abortion is necessary to save a mother’s life “endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical conditions arising from the pregnancy itself” (1531 (a)).
The term “partial-birth abortion” is defined (1531(b) (1)) as 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.”.
Under certain conditions, the father or maternal grandparents may obtain relief in a civil action (1531(c)). A defendant accused under this section may seek a hearing before the State Medical Board (1531 (d)). A woman upon whom a partial-birth abortion is performed may not be prosecuted (1531(e)).
On February 13, 2003, Rep. Steny Hoyer (D-MD) introduced an opposition bill, the Late Term Abortion Restriction Act (H.R. 809). This measure has 23 cosponsors and was referred to the Energy and Commerce Committee as well as the Judiciary Committee. The bill states that it is unlawful to perform an abortion after the fetus has become viable, and then adds an exception clause that allows physicians to determine whether the abortion is necessary “to preserve the life of the woman or to avert serious health consequences to the woman.” Under current Supreme Court jurisprudence, this “health” exception means late term abortions can be done for any reason. H.R. 809 restricts nothing.
On February 11, 2003, Rep. Chet Edwards (D-TX) introduced the Late Term Abortion Ban Act (H.R. 679), a measure similar to H.R. 809 but with the same “health” exception that plainly refers to “the physical or mental health of the woman.”
Hearings: On March 25, 2003, Rep. Chabot chaired a hearing before the Constitution Subcommittee of the House Judiciary Committee.
Markup: Following the hearing on March 25, 2003, the Constitution Subcommittee marked up H.R. 760, approving the measure 8-yes, 4-no. No amendments were offered at that time.
On March 26, 2003, the full Judiciary Committee marked up H.R. 760. Six hostile amendments were offered and all six were rejected.
Reps. Robert Scott (D-VA), Tammy Baldwin (D-WI), and Sheila Jackson-Lee (D-TX) offered an amendment to add a health exception; it was rejected 7-yes, 15-no.
Rep. Jerrold Nadler (D-NY) offered an amendment to strike language allowing the abortionist to be sued in civil court; it was defeated 11-yes, 15-no.
Rep. Baldwin offered an amendment to drop the criminal penalty, leaving only fines; this amendment was defeated 8-yes, 15-no.
Rep. Baldwin also offered an amendment to strike the bill’s findings; this too was rejected 10-yes, 18-no.
Rep. Jackson-Lee offered an amendment to rename the bill the “Safe Abortion Procedures Ban Act of 2003”; this amendment was defeated 8-yes, 19-no.
Rep. Baldwin offered another amendment adding to the findings that banning partial-birth abortion would create health risk for women; this was defeated 10-yes, 16-no.
The committee then approved H.R. 760, 19-yes, 11-no.
Floor. On June 4, 2003, the U.S. House of Representatives approved the Partial-Birth Abortion Ban Act (H.R. 760). Four important votes occurred:
•–arecommit the bill to committee. The rule was adopted, 280-yes, 138-no, 16-not voting, 1- vacancy (Roll Call 236)a
•–a rejected, 133-yes, 287-no, 14 not voting, 1-vacancy (Roll Call 240). a
•–a vacancy (Roll Call 241). a
•–The House approved H.R. 760, 282-yes, 139-no, 13-not voting, 1-vacancy (Roll Call 242)a
The text of H.R. 760 was substituted for the text of the Senate passed bill, S. 3, and conferees were appointed. Rep. Nadler moved to instruct the House managers that the conference be open. With no objection, this was agreed to by voice vote.
Cardinal Bevilacqua, Chairman of the Bishops’ Committee for Pro-Life Activities, hailed passage of the House bill, noting, “In voting to ban this procedure, one of the most heinous acts ever perpetrated upon an unborn child, Congress is in harmony with the vast majority of Americans who find this violent act intolerable and want it stopped.” Remarking on the intent of abortion advocates to challenge the bill in court, the Cardinal observed, “Nothing in our Constitution demands that unborn children must be subjected to a procedure so violent and painful. . . . To cloak the act in the Constitution is a national disgrace.”
Senate: On February 14, 2003, Sen. Rick Santorum (R-PA) introduced the Partial-Birth Abortion Ban Act of 2003 (S. 3), the companion bill to the House introduced measure. S. 3 was placed directly on the Senate calendar. It had 45 cosponsors.
Floor: On March 13, 2003, after three days of debate, the U.S. Senate passed the Partial- Birth Abortion Ban Act (S. 3), 64-yes, 33-no, 3-not voting (Roll Call 51). This vote is virtually identical to the last Senate vote on this bill in 1999.
In the course of debate, five hostile amendments were offered. Four were rejected and one adopted. The following four were rejected:
•–aa no, 4-not voting (Roll Call 45).
Background information on these four issues can be found in the final NCHLA legislative report for 2002. See “Legislative Report: 2002” by clicking on the “Related Information” button.
•–a alimitation. On March 12, the Senate voted to table the Durbin Amendment, 60-yes, 38-no, 2-not voting (Roll Call 46).
•–a3Carhart voting (Roll Call 47).
•–aA yes, 60-no, 5-not voting (Roll Call 49).
One amendment was adopted:
•–a no, 2-not voting (Roll Call 48).
In her press release, “Senate Passes Partial-Birth Abortion Ban – President Vows to Sign,” Cathleen Cleaver Ruse, spokesperson for the U.S. bishops’ Secretariat for Pro-Life Activities, stated:
This historic vote sets the ban on track to be the first federal law limiting abortion since Roe v. Wade. This is a great success for those who have worked so hard for passage of this bill, but above all it is a victory for women and children, who bear the pain and anguish wrought by this inhumane procedure.
Cleaver Ruse added:
Today's vote is the beginning of the end for this cruel and dangerous procedure. . . . President Bush has vowed to sign it.
Conference Committee: The House and Senate bills were identical except for the Senate-passed Harkin Amendment, requiring that matter to be resolved in a conference committee. On passage of its bill, the House named its conferees, though the Senate delayed appointing its conferees until September 17, 2003. On September 30, 2003, the conference committee approved a conference report on the Partial-Birth Abortion Ban Bill (using the S. 3 designation). The Harkin Amendment was dropped.
On September 12, 2003, Cardinal Anthony Bevilacqua, Chairman of the Bishops’ Committee for Pro-Life Activities, sent a letter to the U.S. Senate, urging that the Harkin Amendment be dropped from S. 3. He argued that the claims in the Amendment “are question-begging and false, even in the eyes of judges and legal scholars who favor the public policy created by Roe.”
On October 2, 2003, the House approved the conference report (S. 3), 281-yes, 142-no, 12-not voting (Roll Call 530). On October 21, 2003, after four hours of debate, the U.S. Senate voted 64-yes, 34-no, also to approve the conference report on S. 3 (Roll Call 402).
Law: On October 28, 2003, the measure was sent to the president. Beginning with midnight the day the president receives the bill, he had ten days, excluding Sundays, to sign the measure. On November 5, 2003, President Bush signed the bill into law (PL 108-105). Archbishop Charles Chaput, Chairman of the Bishops’ Committee for Pro-Life Activities, thanked the president for signing the ban into law. He also thanked the millions of Catholics and others of good will “who have worked for years to see this achievement.” For the first time since a right to abortion was created by the Supreme Court in 1973, a federal law limits the performance of abortion.
Abortion advocates have challenged the law in the three different federal courts. On November 5, 2003, a federal judge in Nebraska issued a temporary restraining order against the law. His order applies only to the four doctors who filed suit against the law. On November 6, 2003, federal judges in New York and San Francisco issued temporary restraining orders blocking enforcement of the law. These orders are effective for members of the National Abortion Federation and for Planned Parenthood-affiliated clinics.
A legislative briefing page with current information on partial-birth abortion can be found by clicking on the “Related Information” button.