As the debate over the bogus “partial-birth” abortion ban goes on in the Senate, it’s instructive to look at the things the Republicans in the Senate have rejected this week.

• They rejected an act to ban abortions post-viability. Their objection? It made an exception for cases in which the health of the mother was endangered; some pro-lifers have claimed that “health” is too vague a term.

• They also rejected Dick Durbin’s bill, which would “ban all abortions after a fetus is viable unless two physicians certify that the abortion is necessary to protect the life of the pregnant woman or that she was at; risk of grievous injury to her physical health.’” Republican Rick Santorum said that since any pregnancy carries health risks, no provision at all that seeks to protect women’s health could be acceptable.
• Continuing their war on women’s health, Republicans (and three Democrats) rejected an amendment that would have sought to reduce the demand for abortion by providing health insurance coverage of prescription birth control, and making emergency birth control available to rape victims in hospital emergency rooms.
• Republicans rejected a campaign to raise awareness of the “morning after” pill, in an attempt to reduce the need for abortion. If it doesn’t restrict women’s lives, Republicans apparently have no interest in trying to prevent abortion.
• Incredibly, Republicans also rejected providing prenatal care for low-income pregnant women (by making them eligible for the State Children’s Health Insurance Program). (Republicans have said that they’d be willing to provide the fetus with health care, but not the mother.)
• Meanwhile, in Montana, a pro-life legislator says that he plans to eliminate funding for prenatal care unless he gets his anti-abortion legislation passed. If “his amendment fails, the senator will single out programs like the one that provides medical home visits for women with high-risk pregnancies. McGee might also target a modest grant that gives pregnant women vouchers they can use to purchase healthy food at the Missoula Farmer’s Market.”
• And in an item unrelated to abortion, John Ashcroft is planning to demote the Violence Against Women office, so it will be less effective and powerful. (Republicans only oppose anti-crime measures is when the victims are women or the criminals are corporations).

Keep in mind what they’ve rejected. They don’t really want to ban post-viability abortions - they reject that. They don’t really want to protect fetuses - they reject prenatal care. They don’t really want to prevent abortion - they reject measures to reduce the demand for abortion.

What they do want, I’ll leave for the reader to infer for her or himself.

WARNING! This post contains clinical descriptions of some abortion procedures. Some folks, understandably, find that sort of thing disturbing to read. Don’t read the rest of this post unless you think you can deal… If you just want the “key points” of this post, Lying Media Bastards has summed it up.

I’ll be doing a few more posts about S.3, the Partial Birth Abortion Ban Act of 2003 this week, so I hope y’all have patience. Let’s start with Diotima’s question. NOW and other groups opposed to the PBA Ban claim:

This complaint had more merit the previous two times Congress passed PBA bans; the current incarnation contains a less vague definition of what a “partial birth abortion” is. So, to some extent, NOW is either being hyperbolic or using outdated boilerplate language from years past. But just because they’re exaggerating doesn’t make them wrong.

I want to examine how this bill defines “PBA,” but first of all, let’s note what’s not in the bill. At no point does the bill mention “intact dilation and extraction” (D&X), which is the medical name for the procedure this law is supposedly aimed at banning. (”Partial birth abortion” is a term made up by pro-life partisans, with no medical meaning). Particularly since a major reason past PBA bans have been overturned is the vagueness of the term, why don’t the pro-lifers use the actual name of the procedure they wish to ban?

Well, because they don’t want to ban that procedure - and, as I will show, this bill specifically avoids banning D&X. This bill’s advocates want a vague bill that will help erode Roe; a tightly-crafted, narrow bill aimed precisely at one procedure wouldn’t serve that purpose.

Similarly, the terms “viability,” “late term,” and “trimester” don’t appear anywhere in this bill. Why not? If, as pro-lifers claim, the point of this bill isn’t to sneak an attack on abortion at every stage - including pre-viability - into the law, then why don’t they clear this up by simply writing a provision limiting the law’s effect to post-viability, or to the third trimester, or whatever?

Pro-lifers are unable to achieve their legislative goals except through deception and lying. If they wanted to ban D&X abortions post-viability, they could have simply written a law saying so. But they’ve deliberately avoided writing such a law, in favor of a deliberately ambiguous law.

So that’s what the bill doesn’t say, but what does it say? Here’s how the PBA Ban defines its key term:

The first thing to note is that language about “a head-first presentation”: the law apparently requires “the entire fetal head” to be “outside the body of the mother” before “the overt act” (whatever that vague term means) that kills the fetus is performed. Many supporters of this law claim that the ban is aimed at late-term abortions, but that’s not possible. This passage makes it clear that the ban is aimed at pre-viability abortions - abortions in the first four months of pregnancy. Why? Because no doctor would bring “the entire fetal head” outside of the body after the 16th week of pregnancy; at that point, the head is typically too large to be extracted without risk to the mother. Instead, doctors typically compress the skull - either by crushing it with forceps, or by removing the skull’s contents - before the head goes outside the mother’s body. Presumably, crushing or draining the skull is an “overt act” that kills the fetus - and in D&X, that’s done before “the entire fetal head” is outside of the mother’s body.

This is worth emphasizing: As defined by the Act itself, the only head-first abortions that could be considered “Partial-Birth abortions” take place in the first four months of pregnancy, well before viability. This is not an act aimed at late-term abortions, or at protecting post-viability fetuses.

So what would be banned?

A few actual D&X abortions would be banned (those that involved a feet-first presentation, for example). But also many ordinary D&E abortions - and D&E abortions are among the most common, safest abortions available. (D&X is technically a subcatagory of D&E, by the way. D&E stands for “dialation and evacuation.”)

Here’s how the brief of Dr. Carhart (in Stenberg v. Carhart) describes the D&E proceedure:.

So in a D&E abortion, the doctor draws the “living fetus” out of the uterus, into the vagina and out of the mother’s body. In the not-uncommon case in which the fetus remains relatively intact until it’s partly out of the mother’s body (either head-outside in a head-first presentation, or outside to the navel in a breech presentation), the doctor will be in trouble. Continuing to pull the fetus out of the body will cause dismemberment - an “overt act” that the doctor “knows will kill the partially delivered living fetus.” Suddenly, the doctor’s a criminal; she’s facing the loss of her medical license, plus up to two years in prison.

Let’s review: what would this law do?

It would not ban all D&X abortions. In fact, the language of the bill may exempt head-first D&X abortions from the ban - even though the bill’s proponents have often claimed that their intent is to ban D&X abortions.

It would, potentially, ban many D&E abortions. D&E is the procedure used for 96% of second-trimester abortions in the United States.

So why does this matter?

Well, it helps explain why this bill is almost certainly unconstitutional.

The most important case to look at is Stenberg v. Carhart, the case in which the Supreme Court, by a 5-4 vote, overturned Nebraska’s PBA ban. In particular, it’s important to look at O’Connor’s concurrence, because O’Connor is the most likely swing vote for this case. But O’Connor made it clear that laws banning D&E abortions - as this law seems to - are unconstitutional.

So that’s one way in which the PBA ban is unconstitutional. I’ll blog later this week on the second way in which the new PBA ban is unconstitutional - that it makes no exception to protect the health of the mother.

So the Senate is banning partial-birth abortion again.

But opponents of the ban say it is about abortion politics, not about a true effort to limit late-term abortions.

“The phrase so-called ‘partial-birth abortion’ does not describe a recognized medical procedure. Rather, it is an inflammatory term invented by abortion opponents to provoke legislators and the public,” the American Civil Liberties Union said.

“The legislation before the Senate would seriously compromise women’s health and drastically limit physicians’ discretion to choose the most medically appropriate abortion method for their patients,” it added.

The bill would make it illegal to perform a “partial-birth” abortion except to save the life of a woman — although backers of the ban say there is never a case when it is in fact a necessary life-saving procedure. Doctors could face up to two years in prison plus fines.

Unlike previous bans, this one will not be vetoed by President Clinton (although it probably will be overturned by the Supreme Court). Assuming it does pass and is overturned, I think this could actually be a good thing for pro-choice politics in the US.

There’s a tendency, in the US, to characterize the abortion debate as a clash of extremists. I don’t think this is accurate. Even moderates on the pro-life side favor using the police to compel pregnant women to give birth against their will - which is, by most standards, an extreme stance. The most moderate pro-life position imaginable is still an extreme position (government-mandated childbirth is the essence of the pro-life position; if you don’t favor using state force to make pregnant woman give birth against their will, you’re not pro-life).

While there are some extremist pro-choicers - like me - who favor absolute abortion on demand until the moment of childbirth, we’re not in control of the pro-choice movement, or the Democratic party. On the contrary, the Democrats - including Democrats who are strongly supported by Planned Parenthood and NARAL - have proposed and supported late-term abortion bans again and again. (Here’s the current proposal). These bills would have banned late-term abortions except to protect the life and health of the mother, would have been constitutional, and would not have been vetoed by Clinton.

But republicans have prevented these bans from being voted on, again and again. Why? Because their goal isn’t to ban late-term abortions; it’s to create the illusion that the Democrats favor late-term abortions. The purpose isn’t to change the law; the purpose is to display gigantic photographs of bloody baby corpses on the floor of congress and ask how Democrats can favor such a thing. A constitutional bill that would actually ban needless late-term abortions would be supported by Democrats - which would ruin the picture pro-lifers want to paint of equal extremists on both sides of the issue.

(Along these lines, it’s interesting to notice that some pro-life activists who aren’t Republican party spinners oppose the “partial-birth” abortion ban, because they correctly recognize that it wouldn’t prevent any actual abortions from taking place. Link via Diotima).

The debate isn’t over “do we ban late-term abortions or not?” Both parties favor banning late-term abortions. The debate is over “do we define late-term abortions in a manner that would pass court scrutiny, and with an exception to protect the mother’s life or health; or do we define it vaguely, and without protecting the mother’s health, so that the courts will near-definitely strike it down?”

The legislative debate, in other words, is between centrist pro-choice democrats, and extremist pro-life republicans. Extremist pro-choicers like me - who think women have an absolute right to abortion for any reason, at any stage of pregnancy - exist, but we aren’t really part of this debate. Our legislation isn’t on the table.

If passing an unconstitutional bill (and having it signed by the White House) takes the “partial birth” abortion issue off the table for a while, that would be excellent for the Democrats. (It may be the Republicans see it this way too - look at how long it’s taken them to bring this to the floor since Bush was elected). The only hope Republicans really have is to placate their pro-life voters with side issues like these. The closer the abortion debate moves to the core issue - which is, do we want police enforcing childbirth on unwilling pregnant women? - the less happy Republicans will be.