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Still Legal


This may feel like déjà vu. The Senate has passed such a ban before — but Bill Clinton was president and vetoed it twice.

Illustration courtesy of Dr. Anthony Levatino 505-521-0105

Now that both the Senate and the House can pass it, and the president has asked for it, it should be relatively smooth sailing — save for a phony ban (introduced by Dick Durbin in the Senate, Steny Hoyer (D., Md.) and Jim Greenwood (R., Pa.) in the House) and an affirmation of Roe (Sen. Tom Harkin (D., Iowa)) the Senate is expected to take up during the debate.

After all, this is an issue that gets beyond the usual abortion-debate divide: Even stalwart defenders of "choice" have realized that partial-birth abortion is infanticide.

This year, 30 years after Roe v. Wade, new numbers from the think tank for the abortion movement, the Alan Guttmacher Institute, have ironically given lie to the most repeated myth (more myth debunking here) about "so-called 'partial-birth-abortion,'" as it is often called in the press. In a survey of abortion providers, Guttmacher reported that there has been a tripling of partial-birth abortions between the years 1996 and 2000. In 1996, the first year Guttmacher asked about the procedure, the survey estimated there were "about 650" annually. The new report says that by 2000, there were 2,200. Still, Guttmacher dismisses the frequency of this form of abortion — in which babies are subject to an especially brutal death: They are partially delivered, their skulls cracked, and then their bodies are fully removed from the womb — as "very small" and "rare."

But even the brutality of the procedure is not enough to knock the Washington Post editorial page from its usual position. "We are about to enter another round of pointless debate about 'partial birth' abortions," the Post complains. "From the language of the bill ('the child will fully experience the pain'), it's clear this Senate bill is merely another way for antiabortion forces to weaken the logic of Roe v. Wade by insisting that a fetus is really a child at all phases and should be treated as one."

While many pro-lifers are happy to chisel away at Roe v. Wade step-by-step, the specific brutality of this procedure should, in fact, be considered apart from other forms of abortion.

The ban is expected to become law this year (on the president's timetable), but the real question is: Will the courts strike it down? The Supreme Court struck a blow to pro-lifers when it nullified a Nebraska ban on partial-birth abortions in Stenberg v. Cahart in 1999. A particularly dangerous blow, too, as National Review's Ramesh Ponnuru has written: "[T]he Court wasn't saying merely that a woman has a right to a partial-birth abortion when it is the safest way of dealing with a threat to her health: It said that a woman in the eighth month of pregnancy who wants her baby dead, whatever her reason, has a right to have that baby killed in whatever way is safest to her."

Sponsors of the latest version of the federal Partial Birth Abortion Ban Act believe that it will withstand the courts. Legislators point to a tighter definition of the procedure it's banning ("D&X" abortions) and to a new emphasis on the "health of the mother issue": demonstrating (using the results of congressional findings of fact) that there simply is no health-of-the-mother reason to ever perform a partial-birth abortion.

But the ban still has its stalwart opponents — among them Leroy Carhart, Nebraska abortionist and pro-choice superstar, who took his state's ban to the Supreme Court. He promises to take the federal ban there, too. Carhart told The Hill last week: "This whole issue is about control over women. They have picked one very gross thing about abortion and tried to sell it to the American people as wrong."

That makes him partially right about partial-birth abortion. "Gross," yes — and unnecessary, and "an abhorrent procedure that offends human dignity," as the president put it in his State of the Union address earlier this year.

(Editor's note: On March 13, 2003 the Senate voted overwhelmingly (64-33) to ban partial birth abortion. This sends the legislation to the GOP-controlled House, where passage is expected this spring.)


Kathryn Jean Lopez. "Still Legal." National Review (March 10, 2003).

This article is reprinted with permission from National Review. To subscribe to the National Review write P.O. Box 668, Mount Morris, Ill 61054-0668 or phone 815-734-1232.


Kathryn Jean Lopez is an associate editor of National Review and deputy managing editor of National Review Online (

Copyright © 2003 National Review



Copyright © 2004 Victor Claveau. All Rights Reserved