Revealing the Truth: Common Questions About So-called “Partial-birth Abortion” Bans

From: the Center for Reproductive Law & Policy

On April 25, 2000, the United States Supreme Court will hear CRLP’s challenge to a Nebraska law banning abortions. The Nebraska law, like the virtually identical laws passed in states across the country, is part of a deliberate strategy designed to overturn American women’s right to choose abortion.

Waging a campaign of deception, opponents of choice have misled the public and legislators about what these laws actually do. The truth is simple. The so-called “partial-birth abortion” laws ban abortions during the first half of pregnancy – they are not bans on “late term” abortions. These deceptive, extreme, and unconstitutional laws prohibit almost all abortions, not just one technique, and endanger women’s health.

Do these bans violate Roe v. Wade and the right to choose?

Absolutely – these extreme and deceptive laws strike at the heart of the right to choose. The central principle of Roe is that a woman has the right to make private decisions about abortion without government intervention and that she cannot be forced to sacrifice her life or health to protect a fetus. The anti-choice extremists who champion these laws argue that legislatures, not women and their doctors, should make basic health decisions – that the government should be able to prevent doctors from providing the best possible medical care for their patients.

In addition, by outlawing abortions throughout pregnancy, the so-called “partial-birth abortion” bans do away with the critical distinction Roe made between abortions performed before the fetus is viable and those performed after that point.

Don’t these laws ban just late-term abortions?

No. Using gruesome pictures and inflammatory rhetoric, anti-choice extremists have tried to deceive the public into believing that the so-called “partial-birth abortion” laws outlaw only late abortions. A close look at the actual language of these laws reveals, however, that they are not restricted to late abortions and, in fact, never even mention “late-term abortions.” According to the American College of Obstetricians and Gynecologists, these laws apply to “all stages of pregnancy.” Judges across the country agree. In twenty states, these laws have been blocked or severely limited.

In the case now before it, Stenberg v. Carhart, the Supreme Court is only considering the Nebraska “partial-birth abortion” ban’s effect on abortions during the first half of pregnancy. This means that 99% of all abortions performed in this country – those done before 21 weeks of pregnancy – will be affected by the outcome of this case.

Don’t these laws ban just that one procedure shown during legislative debates and in newspaper ads?

No. The anti-choice groups that developed and championed these laws have used “bait and switch” tactics. In reality, judges across the country have ruled that the laws in fact ban virtually all abortion methods, including vacuum aspiration (the method most widely used in early abortions) and dilation and evacuation (or “D&E,” a method that is often used in second trimester procedures).

Moreover, while the laws’ proponents now say they are trying to ban one procedure – intact dilation and extraction (or “D&X”), a variant of the D&E procedure – they have told many different stories:

FACT: In March 1996, Representative Charles Canady and five other chief sponsors of the first federal “partial-birth abortion” bill, wrote to his fellow members of Congress to assure them that this bill affected more than just the one technique known as “D&X.” Instead, they said the law would prohibit all abortions that fit the definition quoted above, “no matter what the abortionist decides to call his particular technique.”

FACT: In several states, including Nebraska, proponents of these laws have rejected attempts to limit these laws to only the D&X procedure or to late abortions.

Don’t medical groups support bans on “partial-birth abortions”?

No. The American College of Obstetricians and Gynecologists, an organization that represents 40,000 physicians specializing in women’s health, opposes these laws, including the “partial-birth abortion” bill currently pending in Congress. According to ACOG, the federal bill “represents an inappropriate, ill advised and dangerous intervention into medical decision-making.”

In 1997, the Board of Trustees of the American Medical Association (AMA) voted to support the federal “partial-birth abortion” bill. This decision was later the subject of an AMA internal report, which concluded that the endorsement violated the association’s decision-making processes and policies, including its historic position on abortion. In addition, the report suggested that AMA leaders were “manipulated” by Republican members of Congress who sponsored the legislation. In 1999, the AMA announced that it would not support so-called “partial-birth abortion” legislation.

Shouldn’t we pass laws to ban late abortions?

This question assumes two things: that there are no such laws now and that there are so many late abortions performed that new laws must be passed to stop them.

Roe v. Wade struck a careful balance between women’s lives and health and the state’s interest in promoting “potential life.” It held that, after fetal viability (around 24 weeks of pregnancy, depending on the pregnancy), states are free to ban abortions, so long as exceptions are made to protect women’s lives and health. Today, 36 states – including Nebraska – have laws banning post-viability abortions. It is important to understand, however, how many later abortions are performed and why.

Abortions performed later in pregnancy are rare, and post-viability abortions are even rarer. According to the Alan Guttmacher Institute, approximately 1% of all abortions in the U.S. are performed at or after 21 weeks of pregnancy. It is estimated that approximately 0.08% (around 1,170 – or less than 1 in 1,000) are performed after 24 weeks of pregnancy.

Those few women who have post-viability abortions have very good reasons for doing so. Often, these are wanted pregnancies that are terminated because the woman’s life or health is endangered, or because the fetus has a severe anomaly that is incompatible with life. It is these women who would bear the consequences of laws banning post-viability abortions.

Finally, it should be noted again that these so-called “partial-birth abortion” bans are not about late abortions – they affect abortions at all stages of pregnancy.

Aren’t the “partial-birth abortion” laws simply a reaction to the new procedure introduced by abortion doctors?

No. These laws are part of a long-standing strategy to change public opinion and to reverse Roe v. Wade through the courts. Following the defeat of the Human Life Amendment in the late 1980s, opponents of choice developed strategies short of a constitutional amendment to overturn Roe. In 1987, anti-choice lawyers wrote, “the most logical and potentially workable strategy for [reversing Roe] is to focus on expanding the state’s compelling interest in fetal life to encompass the woman’s entire pregnancy.” These authors further stated that their suggested strategy, “which begins by weakening ‘viability’ and ‘health’ abortion arguments, is calculated to attack the framework of the abortion privacy doctrine at its most vulnerable point. This approach offers the greatest potential for a complete repudiation of Roe. . . .” This is exactly what they have done here: the so-called “partial birth abortion” laws make no exceptions for women’s health and affect abortions throughout pregnancy.

Moreover, the one procedure they now claim they are attacking is simply a variation of a procedure often used in second trimester abortions. This variation was developed for use in situations where it helped to protect women’s health.

FACT: Abortion techniques – like all medical procedures – have evolved over time, as doctors developed new ways to make the procedure safer and easier. In passing the so-called “partial-birth abortion” bans, politicians are saying that they should be allowed to prevent doctors from making medical advances designed to protect their patients’ health.

Why can’t states just ban the D&X procedure?
First of all, it is important to remember that the so-called “partial-birth abortion” laws do not ban simply one procedure; they ban virtually all abortions, at any stage of pregnancy. Moreover, even a very narrow ban on just this one procedure would be very problematic – and unconstitutional.

The D&X procedure is used in certain situations because it is the safest method for some women. Moreover, it is very hard to craft a legal definition that does not also affect a number of other procedures: doctors use many different variations of procedures depending on a particular woman’s health needs. If allowed to stand, a law that actually banned this procedure would set a precedent saying the government can force some women to undergo riskier medical procedures just because some legislators want to make a political point.

The anti-choice extremists who wrote this law for legislatures across the country, and who are defending it now before the Supreme Court, have used inflammatory rhetoric and gruesome pictures to divert attention away from what they are actually doing. They have lied about what this law actually bans. They have lied about the threat it poses to Roe v. Wade.

It is time to say that enough is enough. Women’s lives and health, the well being of their families, and the right to keep politicians out of private decisions are at stake.