Chipping Away At Roe

When aides to Rep. Charles Canady of Florida prepared to introduce a ban on certain abortions in 1995, they couldn't find the practice in any medical textbook. So Canady and his aides decided to name it themselves. They hoped to outlaw a technique in which the doctor "partially vaginally delivers a living fetus before killing the fetus and completing the delivery," as the original bill put it. "We wanted the most descriptive term," says former staff lawyer Keri Folmar. "The hope was that people would look abortion in the face." Conferring with Douglas Johnson, legislative director for the National Right to Life Committee, the aides rejected "partial-delivery abortion" as well as "brain-suction abortion." Finally, they found the politically potent catchphrase they were looking for: partial-birth abortion.

The campaign that Canady (who has since left the House for the federal bench) & Co. launched has sparked one of the fiercest fights since Roe v. Wade. "This is about ending legal abortion," says NARAL Pro-Choice America president Kate Michelman, who worries it's an attempt to ban the procedure one method at a time. Still, the bill was twice passed by the full Congress and twice vetoed by President Bill Clinton. Now, with both Congress and the White House in the hands of abortion opponents, Republicans have identified the ban as one of their top priorities. The Senate is set to begin debate this week and, if the bill passes as predicted, George W. Bush is expected to sign it into law this --spring. Even if the courts later stop it from taking effect, "it's a significant political watershed," says Roger Evans of Planned Parenthood. The ban would mark the first time Congress has restricted abortion since Roe--and the first time Congress has outlawed a specific medical procedure. The issue has been a boon to abortion opponents eager to shift the debate away from the esoteric rhetoric about a woman's "right to choose" and into the graphic particulars of the procedure.

Ever since Roe, abortion foes have looked for ways to make the practice illegal again. In early 1993, Johnson could hardly believe his luck when a copy of a paper by Dr. Martin Haskell arrived anonymously at the National Right to Life offices. It spelled out, in plain English, Haskell's method for removing an intact fetus feet first until the head lodged against the cervix, then poking a hole in the base of the skull and suctioning out the brain. "It let us break through all the rhetoric," says Janet Folger, then a lobbyist for Ohio Right to Life, which helped pass the first state ban. Folger knew she had a hot issue when some lawmakers broke down in tears. When Canady brought up the bill in Congress, even abortion supporters like Sen. Daniel Patrick Moynihan signed on.

As the debate over partial birth has heated up, both sides have stretched the truth. Abortion-rights supporters at first contended that the procedure was done only rarely--perhaps 500 times a year--and was used mainly to save the life or health of the mother or to spare a severely deformed fetus. While doctors never call it partial-birth abortion, the closest medical procedure, dilation and extraction (D&X), is actually performed more frequently--2,200 times in 2000, according to the Alan Guttmacher Institute (which also estimates that D&X accounted for just 0.17 percent of the nation's 1.31 million abortions in 2000). And, while the technique is mainly used in dire cases after 24 weeks, it is often used on healthy women with healthy fetuses from 18 to 24 weeks.

But abortion opponents have had their own credibility problems. They suggested the procedure has been used for frivolous reasons up until the final weeks of pregnancy. In fact, 41 states have laws restricting later abortions to cases where the woman's health or life is at stake. They were also faulted early on for using stark--and some say misleading--pen-and-ink drawings of a nearly full-term fetus to demonstrate the procedure; new images are certified by an Ob-Gyn to show a fetus at 24 weeks.

Partial-birth bans have already met resistance in the courts. In 2000, the U.S. Supreme Court struck down a Nebraska law, saying its definition of partial birth was so vague it could have outlawed other perfectly legal procedures. The court has also insisted on a broad exception allowing any procedure as long as a doctor believes it's best for a woman's health. Abortion opponents see that as a gaping loophole. "It guts the bill," says Sen. Rick Santorum, its chief sponsor. His version tries to respond to the court's concerns with a more specific definition of the procedure and argues that partial-birth abortion is never necessary to protect a woman's health.

Abortion-rights activists say the latest bill is still so ambiguous it could have a chilling effect on many abortions. Dr. LeRoy Carhart, the doctor who challenged the Nebraska ban, says the fear of breaking the law would stop him from performing all abortions between 14 and 20 weeks--which means he'd actually delay them until he could use a different type of procedure.

Both sides predict a new legal battle as soon as the ink dries on Bush's signature. Courts are likely to issue an immediate injunction that stops the bill from taking effect. And, in the end, constitutional scholars say the Supreme Court isn't likely to buy Congress's attempts to sidestep the health exemption.

That means that for all the sound and fury, the law could have no practical impact. Even some on the right wonder why abortion opponents have spent so much energy on it. Mark Crutcher, of the anti-abortion group Life Dynamics, says the partial-birth fight has allowed politicians to take a public stand without any real consequences. "Bush gets to play pro-life without having to do anything pro-life," he says. Still, the effect on public opinion has already been profound: polls show broad support not only for the partial-birth ban, but for more restrictions on abortion after the first trimester. Even if abortion foes lose in the courts, gaining points with the public could be the biggest win of all.