On March 13, the Senate passed the so-called "partial-birth abortion" ban (S.3) by a vote of 64-33; the House is expected to pass its own version within a matter of weeks. Based on his State of the Union address, it is clear that President Bush is eager to sign the bill into law. Despite the speed with which this bill is moving through Congress, many members of the public do not know what the bill would actually do. Nancy Northup, President of the Center for Reproductive Rights, answers questions about the legislation that, if enacted, would be the first-ever federal ban on abortion.
Is the "Partial-Birth Abortion Ban Act of 2003" (S.3, H.R. 760) a ban on a "late-term" abortion procedure?
Absolutely not. While its supporters claim one thing, they have actually written a law that does something far different. This legislation, as written, is not restricted to post-viability abortions and is not restricted to any one procedure. In reality, it would prohibit doctors from using the dilation and evacuation (D&E) method of abortion, which is the most commonly used method from 12 to 20 weeks of pregnancy – well before fetal viability. It would also prevent women from obtaining abortions using the method that their doctors believe is the safest and most appropriate – even in instances when their health is at risk.
How do medical groups feel about these so-called "partial-birth abortion" bans?
First of all, there is no known medical procedure called "partial-birth abortion." That term is one made up by anti-choice legislators with the help of the National Right to Life Committee in order gain public support for abortion bans that threaten the right of women to access safe medical procedures. The American College of Obstetricians and Gynecologists, which represents more than 90% of all physicians specializing in obstetrics and gynecology, describe bans on so-called "partial-birth abortion" as "an inappropriate, ill-advised and dangerous intervention into medical decision making." Other groups, such as the American Medical Women’s Association and the American Nurses Association, also oppose these laws.
Is there any difference between the proposed federal abortion ban and the Nebraska abortion ban that was struck down by the U.S. Supreme Court in Stenberg v. Carhart?
The proposed federal abortion ban’s definition of what a "partial-birth abortion" differs in some respects from the one in the Nebraska law, but legally there is no difference. Like the Nebraska law, the federal bill is so broadly worded that it could affect many pre-viability abortions using the D&E method. The truth is that, if the bill’s supporters wanted to pass a constitutional ban on post-viability abortions, they could have done so – but they refused to pass an amendment that would have done just that. And if they wanted to prohibit a specific method, they could have written a law that went after that one method – but they didn’t do so. Instead, they passed something that is very different from what they claim they’ve passed. You have to ask yourself why they would do one thing while they’re saying something else.
So is the proposed federal abortion ban constitutional?
No. This law is unconstitutional under the U.S. Supreme Court decision in Carhart, which the Center for Reproductive Rights won just three years ago. In Carhart, the Court struck down the Nebraska law for two reasons: it would have prohibited the most commonly used methods of abortion in the second trimester and it did not contain an exception for threats to a woman’s health. The proposed federal abortion ban has those same two flaws.
What about the congressional findings that the bill doesn’t need a health exception because the procedures it bans are "never necessary to preserve the health of a woman"? Aren’t the courts bound to accept these findings?
Congress can’t just ignore a legal ruling it dislikes by adopting conflicting legislative "findings." It is the courts’ duty to say what the law is -- and to make independent judgments on the facts underlying an issue of constitutional law. Just as Congress couldn’t overturn Brown v. Board of Education by "finding" that segregated schools are good for children, it can’t overturn Carhart and Roe v. Wade by deciding that some medical procedures aren't necessary.
In reaching its decision on the Nebraska ban, the Supreme Court had before it the findings not only of the Nebraska trial court, but also that of the court from Wisconsin, which reached the opposite result. The High Court agreed with the Nebraska court – and 16 other federal and state courts – that these laws are unconstitutional. The Court’s decision simply couldn’t be clearer: under the Constitution, legislation restricting methods of abortion must be specific, must not ban the most commonly used methods, and must contain an exception that takes into account a woman’s health. This bill fails to measure up.
Is the federal ban an attack on women’s right to choose?
This legislation would eviscerate the Supreme Court’s protection of a woman’s right to choose abortion before a fetus becomes viable. Women, and their doctors, would no longer have the right to determine which medical procedure is the safest and most appropriate to end a pregnancy based on their individual circumstances. Instead, this legislation would give that right to federal prosecutors. Doctors could be imprisoned for up to two years and fined for meeting their patient’s best interests -- performing procedures that are safe and medically appropriate to protect a woman’s health. So, yes, this ban is an attack on women’s right to choose – and an extremely serious one at that.
In February, the National Cancer Institute (NCI) laid to rest an abortion scare tactic propagated by the anti-choice movement. A group of approximately 100 leading scientists and advocates in the field of breast cancer research, who were assembled by NCI, stated unequivocally that induced and spontaneous abortions do not lead to an increased risk of breast cancer.. The experts declared that their conclusion was "well established" by scientific evidence, issuing the strongest statement allowed by the Institute.
Last October, the U.S. Department of Health and Human Services ordered NCI to remove a fact sheet that cited scientific findings disavowing any link between abortion and a heightened risk of breast cancer. The move caused an uproar among reproductive rights advocates and their supporters in Congress, and provided the impetus for the February meeting. On March 21, NCI published a new version of the fact sheet, which now states "The newer studies consistently showed no association between induced and spontaneous abortions and breast cancer risk."
The group's conclusion directly contradicts the propaganda of anti-choice activists trying to scare women out of choosing abortion by falsely contending that it increases the risk of breast cancer.
"It is time to put this abortion-breast cancer propaganda to rest," said Linda Rosenthal, staff attorney at the Center for Reproductive Rights. "NCI Director Andrew von Eschenbach had a duty to reaffirm the conclusion of experts in the field of breast cancer research. Women deserve access to unbiased and accurate reproductive health information."
In recent years, more than fifteen states have considered passing laws that could force doctors to provide their patients with medically inaccurate and alarmist information alleging a link between induced abortion and breast cancer. Two states have already passed laws referring to breast cancer as a possible side effect of induced abortion.
Last March, the Center for Reproductive Rights won a case that allowed the Red River Women's Clinic in North Dakota to distribute brochures quoting NCI statements rejecting a link between abortion and breast cancer. The judge ruled that it was reasonable for the clinic to rely on leading cancer organizations to decide what information to provide its patients.
