April 2, 2001

by Cynthia L. Cooper, Women's Enews

Most Americans believe that the phrase "partial-birth abortion" refers to late-term abortion. They are wrong.

No such procedure called "partial-birth abortion" exists, but that term has been the subject of legal bans in 31 states.

How could such a thing happen?

And how could a Nebraska law barring a procedure that does not exist end up at the U.S. Supreme Court last year and gain four dissenting votes supporting its legitimacy?

And why, even after the majority of the high court ruled the law unconstitutional, is there talk about Congress possibly passing a federal law barring a thing that does not exist?

The answer lies in a tangle of semantics, politics, law and medicine.

When the laws using the term were first introduced in the mid-1990s, anti-choice campaigns presented full-term fetuses as the victims of the so-called procedure. The pro-choice advocates responded by presenting women who needed abortions late in their terms, in essence, fighting against the proposals by arguing for exceptions that could protect the health of pregnant women or permit abortions made necessary by a profoundly malformed fetus.

With the focus on the lack of these exceptions, the advocates were slow to recognize that the "partial-birth abortion" laws were written in such an expansive way that they could possibly bar all abortions.

The Supreme Court said in its June decision on the Nebraska law that such laws would interfere with all abortions from the twelfth week onward. In addition, the high court said the bans failed to provide exceptions for women whose health was endangered. It rejected the law for those two reasons.

Overlooking Broad Implications, Debate Focuses on Late-Term Abortions

Because of early framing, much of the public discourse on the issue focused on late-term abortions and the small number of women for whom a late-term abortion might be necessary, rather than the actual language of the proposed laws.

Late-term abortions, that is, a procedure after the point in the pregnancy that the fetus is deemed able to live outside the uterus, are severely restricted, irrespective of the "partial birth abortion" laws. According to the Center for Reproductive Law and Policy, 36 states and the District of Columbia had these post-viability bans on abortion as of July 1999. Viability may be established by as the pregnancy enters its final three months, or more precisely, at the 23rd or 24th week of pregnancy, although it most commonly takes place in the 26th week, according to the Alan Guttmacher Institute.

The gulf between perception and reality, between widespread passage of the bans and their rejection by the courts "can be attributed at least partly to the fact that the statutes are not what their supporters originally claimed, nor are they what the media has generally described them to be," wrote Priscilla Smith, deputy director of litigation for the Center for Reproductive Law and Policy, in the April 2000 Journal of Women's Health and Law.

"We took them at their word," added Maureen Britell, executive director of Voters for Choice, referring to the initial response of pro-choice activists to the rhetoric that accompanied the bans. "We fumbled, bad," Britell added, "and we've been trying to recover ever since."

But, she suggested that women, including her, who had late-term abortion procedures also helped early on to put a public face on something that otherwise required a code-cracker to unscramble.

The devil was always in the details. The term "partial-birth abortion" was a phrase coined by the National Right to Life Committee when it drafted a model anti-abortion ban. The organization opposes all abortions. The proposed bans defined its fabricated term as "an abortion procedure in which the person performing the abortion partially delivers vaginally" a living fetus before causing fetal demise. Virtually all abortion procedures involve bringing the fetus through the vagina. If that were made a crime, than all abortion would be outlawed.

To make the point, attorney Smith carried drawings of a woman's reproductive anatomy into courtrooms to better explain how the uterus connects to the vagina and how, by construction of the woman's body, a doctor had to bring ("deliver" in the ban) the fetus through the vagina.

Anti-Abortion Advocates Say Any Fetus Outside Uterus Is 'Partially Born'

Smith was countered by anti-abortion advocates who said that, once a fetus left the uterus (they actually used the term "womb), it was a "partially-born" child, regardless of whether it could survive outside of a woman's body. "Their argument was that when the fetus is in the vagina, Roe v. Wade doesn't apply," said Smith. "There would be nothing left to Roe." Roe v. Wade is the name of the 1973 Supreme Court case which legalized abortion in 1973)

The Supreme Court said last June that the nebulous language of the Nebraska "partial birth abortion" law did not track with medical distinctions and that the ban was not limited to the single procedure. "Its language makes clear that it also covers a much broader category of procedures," wrote Justice Stephen G. Breyer.

The court also said that the law was unconstitutional because it lacked sufficient safeguards to protect women's health. And it called these results particularly troubling because the law was not a late-term ban, but was applied pre-viability, as well as post-viability.

Media organizations were determined to provide definitions for "partial-birth abortion," as if it were real, instead of something that did not exist. The Gallup News Organization, for example, conducted a poll five months after the Supreme Court ruling, describing the law that the Supreme Court had explicitly rejected and using wording on "a specific abortion procedure" known "as a 'partial-birth abortion.'"

Although the original poll question referred to a ban in the last six months of pregnancy, Gallup's report on the poll, released on the anniversary of the Roe v. Wade decision in January 2001, referred to "the late-term abortion procedure known as 'partial-birth abortion,'" effectively redefining "late-term abortion" as one performed after the first trimester.

Frank Newport, the poll's editor-in-chief, explained in an e-mail response to an e-mail question about the use of the language in this question: "Our research indicates that the newspapers and other media organizations most often use the term 'partial-birth abortion' to represent the topic, and this phrase, in our judgment, best summarizes what the laws and controversy have been about. The reason the media and Gallup perpetuate the phrase is that it is so widely used that readers and respondents would not know what we were talking about if we didn't use it ourselves in discussing the issue."

Problem of Definition Compounded by Misleading Advocacy Campaigns

The very problem of definition was easily stoked by the lanaguage of anti-abortion leaders, who publicly assert that they were only interested in banning a single procedure once described in a speech by Dr. Martin Haskell of Dayton, Ohio.

But their intentions may have been laid bare on occasion. In Georgia, a settlement agreed to by the state attorney general on a "partial-birth abortion" ban established the exact situations in which a doctor could be charged with a violation of the law. The settlement limited the ban to post-viability abortions and added a health exception. It also limited the law to procedures defined as intact dilation and extraction (D and X), the approximate description of Dr. Haskell's method. In response, the Georgia chapter of National Right to Life Committee marched on the state capital in protest.

In the five years before the June ruling of the U.S. Supreme Court, courts either completely rejected "partial-birth abortion" laws or severely limited their application in 21 states where challenges had been mounted. Voters in three additional states rejected the bans.

Nevertheless, the appeal for proposing the laws remains strong among anti-abortion legislators. Rep. Chris Smith, R-N.J., co-chair of the Pro-Life Caucus in Congress, said a federal ban is a top priority for him. His spokesman said that, despite the ruling of the Supreme Court, there is no lessening in emphasis on passing the ban. The congressman, once the executive director of New Jersey Right to Life, opposes all abortions, medical procedures or pills that might affect an embryo or fetus--which he describes as a living child--after the moment of fertilization.

Also, the Christian Coalition is circulating a petition calling for a "partial-birth abortion" ban, using language that was specifically rejected by the Supreme Court, as well as the same public statements that describes the law's goal as ending a "gruesome procedure that tortures and kills babies old enough to live outside the womb."

Cynthia L. Cooper is a free-lance journalist in New York, specializing in reproductive rights issues. Women's Enews is a news service based in New York City.