Communications Department

Watch What He’s Doing, Not What He Says

Mar 20, 1997 | PBA

Watch What He’s Doing, Not What He Says: How President Clinton Is “Having It Both Ways” on Partial-Birth Abortion

“I also understand that many who support this bill [to ban partial-birth abortions] believe that any health exception is, as you suggest, a ‘loophole . . . to include any reason the mother so desires,’ such as youth, emotional stress, financial hardship or inconvenience. That is not the kind of exception I support. I support an exception. . . making crystal clear that the procedure may be used only in cases where a woman risks death or serious damage to her health, and in no other case.”

— President Bill Clinton, letter to the president and ten past
presidents of the Southern Baptist Convention, June 7, 1996
[boldface emphasis added; italics in original]

“We’re not talking about a hangnail, we’re not talking about a headache. Does it include — and this is one of the things that the opponents of this particular legislation, the proponents of the pro-life position, would contend — does it include mental health? Yes, it does.”

— Rep. Steny Hoyer (D-Md.), author of the “killer substitute” amendment to the Partial-Birth Abortion Ban Act, explaining his measure’s provision to allow even third-trimester abortions for “serious . . . health” reasons, at a tape-recorded March 12 Capitol Hill press conference. [see page 10 below for context]
[The Hoyer amendment] reflects Clinton’s position and, according to Democrats, is necessary to make the bill acceptable to the courts.
— “House Judiciary Advances Ban on Partial-Birth Abortion,” Congressional Quarterly Weekly Report, March 15, 1997, p. 643

MARCH 17 — As the House of Representatives prepares to take up the Partial-Birth Abortion Ban Act (HR 929) on Thursday, March 20, the gulf between President Clinton’s public statements and the White House’s legislative actions continues to grow ever wider.

For nearly a year, President Clinton has repeatedly told the American people that he would sign a ban on partial-birth abortions if Congress would add what he called a “minor” amendment, a “very stringent” exception to allow the partial-birth abortion procedure to be used only in “a few hundred” cases annually — cases in which he asserts (wrongly) that the method is necessary to prevent “severe physical damage” to mothers whose “babies had fatal conditions and would not live.” If this single exception were added, “I will happily sign this bill,” Mr. Clinton said on December 13, 1996. [These are all direct quotes from Mr. Clinton, which are reproduced in context below.]

But on Capitol Hill, the White House is insisting on removing from the scope of the ban all partial-birth abortions performed in the fifth and sixth months of pregnancy — when probably at least 90% of all partial-birth abortions occur.

The White House position is embodied in a “killer substitute” amendment that Rep. Steny Hoyer (D-Md.) hopes to offer to HR 929 on the House floor, which would allow partial-birth abortion with no limits whatever until “viability” (as defined by the abortionist), and which would explicitly empower abortionists to perform abortions even in the seventh month and later for so-called “health” reasons, which Mr. Hoyer acknowledged covers (in his words) “mental health,” including “psychological trauma.” [See transcript on page 10 of this memo.]

The Hoyer proposal, like a similar measure that Sen. Tom Daschle (D-SD) has described but not yet produced in written form, is entirely hollow. It has been crafted to look like a restriction on paper, to deceive unwary journalists, and to provide political cover for lawmakers who wish to vote the NARAL line. But it would have the legal effect of granting absolute power to abortionists, even in the third trimester, to perform abortions at will — with their judgments regarding “viability” and “mental health” subject to review by no other legal authority. Any lawmaker who votes for the Hoyer or Daschle proposals should be prepared to defend that extreme policy to his constituents.

[The medical implausibilities of Mr. Clinton’s “health”-based arguments are not addressed in this memo, but were cogently dealt with in a column by Charles Krauthammer, “Saving the Mother? Nonsense,” Washington Post (March 14, 1997). Krauthammer is a medical doctor. The President’s claims have been refuted in more detail by the over 400 specialists in obstetrics and related disciplines who make up the Physicians’ Ad Hoc Coalition for Truth, a group that includes former Surgeon General C. Everett Koop, who have stated that “partial-birth abortion is never medically necessary to protect a mother’s health or her future fertility. On the contrary, this procedure can pose a significant threat to both.”]

Summary of the Competing Policy Options

At this point, the American people have been presented with three different ideas about what should be done about partial-birth abortions:

  1. the Partial-Birth Abortion Ban Act (HR 929/S. 6), to ban partial-birth abortions — including those done in the fifth and sixth months (the great majority), as well as those performed in the third trimester — except in any case in which a partial-birth abortion is necessary to save a mother’s life.
  2. President Clinton’s “for public consumption” verbal position on partial-birth abortion, i.e., a general ban with a “highly restrictive” exception to allow use to prevent “severe physical damage.” [emphasis added].
  3. The drastically different real legislation being pushed by the White House, as represented by the substitute amendment that Hoyer will seek to offer on the House floor on March 20, and a similar proposal that has been described by Sen. Daschle.

This memo now proceeds to contrast these three proposals:

  1. The Partial-Birth Abortion Ban Act (HR 929 by Rep. Charles Canady, S. 6 by Sen. Rick Santorum)The Partial-Birth Abortion Ban Act (HR 929, S. 6) would ban all partial-birth abortions, with this single exception to cover any possible life-of-mother cases:

    [The ban] does not apply to a partial-birth abortion that is necessary to save the life of a mother because her life is endangered by a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, if no other medical procedure would suffice for that purpose.

    The bill defines partial-birth abortion as “an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the infant and completing the delivery.”

    It is the position of the House Judiciary Committee, from which the Partial-Birth Abortion Ban Act originated, that Roe v. Wade does not apply to the partial-birth abortion procedure. Indeed, in Roe itself, the Supreme Court took note of and did not disturb a Texas law that makes it a felony to kill a baby “in a state of being born and before actual birth.” [See the House Judiciary Committee report.]

    As a matter of law in every state, if a baby emerges completely from the womb and shows any signs of life, however briefly, legally a live birthhas occurred. This is so whether or not the baby has achieved the degree of lung development necessary to survive (i.e., “viability,” which begins at about 23 weeks).

    Obstetricians and perinatologists confirm that even during the 20 to 23 week range, if a baby is expelled or extracted completely from the womb, he or she will usually gasp for breath for some time and have a heartbeat for up to an hour, even though lung development is insufficient to permit successful sustained life until 23 weeks. Thus, the victim of a partial-birth abortion is indeed only “inches from her first breath” when the surgical scissors penetrates her skull.

    The Partial-Birth Abortion Ban Act has never contained any reference to the developmental age of the baby. Based on published interviews with abortionists who use the method, NRLC said last year that there must be at least several thousand partial-birth abortions performed annually, the overwhelming majority in the fifth and sixth months of pregnancy (not the third trimester), on healthy babies of healthy mothers, with a small fraction performed even later (and not only in cases involving medical problems).

    In interviews with American Medical News, The New York Times, and other publications in late February, 1997, National Coalition of Abortion Providers (NCAP) Executive Director Ron Fitzsimmons agreed that the method is used routinely by some practitioners, that the number probably totals 3,000 to 5,000 annually, and that the “vast majority” are performed “on healthy fetuses and healthy mothers” (American Medical News, March 3, 1997, page 54). When he asserted otherwise in 1995, he had “lied through my teeth” (New York Times, February 26) and “just went out there and spouted the party line,” Fitzsimmons explained. (Washington Post, February 27). [emphasis added]

  2. President Clinton’s “Public Consumption” Verbal PositionIn televised utterances to the general public, and in letters to pro-life religious leaders, Mr. Clinton has repeatedly insisted that he would sign “the bill” to impose a “general ban” on partial-birth abortions if one “minor amendment” is added — a “very stringent” exception for use of the partial-birth abortion procedure by women who will (he asserts) otherwise suffer “severe physical damage” (to apply, for example, if delivering a baby without the procedure “ripped your body to shreds”). [These are all direct quotes from President Clinton, reproduced in context below.]

    This “position” has been reiterated by President Clinton himself as recently as his March 7 televised news conference.

    However, the White House has communicated a vastly different and radically more permissive position to Democratic leaders in Congress, and to pro-abortion advocacy groups: a position of permitting no limitations on the vast majority of partial-birth abortions, which are performed in the fifth and sixth months of pregnancy; and of allowing partial-birth abortions even in the seventh month and later whenever a single abortionist affirms that it would avert even mental health problems for the mother.

    According to Congressional Quarterly Weekly Report for March 15, 1997, page 643, an unsuccessful amendment offered by Rep. Robert Scott (D-Va.) at the March 12 House Judiciary Committee markup of HR 929 “reflects Clinton’s position and, according to Democrats, is necessary to make the bill acceptable to the courts.” The Scott Amendment is identical to the bill introduced on the same day by Rep. Hoyer (HR 1032), which Mr. Hoyer said he will seek to offer as a substitute for HR 929 when the bill reaches the floor on March 20.

    What Exception Has President Clinton Insisted On?

    President Clinton’s verbal position on partial-birth abortion — as expressed to huge audiences through televised news conferences — is light years away from the abortion policy embodied in the Hoyer (Scott) Amendment. In order to fully appreciate the Grand Canyon that separates the two, it is necessary to review Mr. Clinton’s major public pronouncements on this issue.

    President Clinton vetoed the Partial-Birth Abortion Ban Act on April 10, 1996. In his formal veto statement to Congress, he asserted:

    The procedure described in H.R. 1833 has troubled me deeply, as it has many people. I cannot support use of that procedure on an elective basis . . . That is why I implored Congress to add an exemption for the small number of compelling cases . . . The life exception in the current bill only covers cases where the doctor believes that the woman will die. It fails to cover cases where, absent the procedure, serious physical harm, often including losing the ability to have more children, is very likely to occur.

    At his televised April 10 “veto ceremony,” Mr. Clinton asserted that the “exception” that he required would apply to:

    a small but extremely vulnerable group of women and families in this country — just a few hundred a year. . . . They all desperately wanted their children. They didn’t want abortions. They made agonizing decisions only when it became clear that their babies would not survive. Their own lives, their health, and in some cases their capacity to have children in the future were in danger. . . .

    When I asked the supporters of the bill here to try to take account of this, they said, “Well, if we have a ‘health’ exception, you know, you could — the doctor and the mother could say anything . . . . And I said, no, no, no. I will accept language that says, ‘Serious, adverse, health consequences to the mother.’ Those three words. Everyone in the world will know what we’re talking about. We’re talking about these families. . . . families in the position where they lose all possibility of future childbearing, or where they — the doctor can’t say that they might die, but they could clearly be substantially injured forever. And my pleas fell on deaf ears.

    On May 23, 1996, in Milwaukee, ABC News correspondent Brit Hume asked President Clinton about remarks made earlier that day by Bob Dole. Mr. Clinton responded angrily. He insisted that he had vetoed the bill to protect

    several hundred women every year who are told by their doctors that their baby is severely hydrocephalic . . . and that the only way those women can avoid serious physical damage, including losing the ability to ever bear further children, is to reduce the size of the skull, the head of the baby, before it’s too late.

    Mr. Clinton went on:

    All I asked the Republicans in Congress to do was to pass an exception for women who would face severe physical damage. . . . Why wouldn’t they accept that minor amendment? Why? [emphasis added]

    On June 5, 1996, the president and 10 past presidents of the Southern Baptist Convention (Mr. Clinton’s own denomination) wrote to Mr. Clinton, urging him to change his mind, and criticizing Mr. Clinton’s proposal for a “health” exception as “a discredited, catch-all loophole.” President Clinton responded in a letter dated June 7, 1996:

    The procedure may well be used in situations where a woman’s serious health interests are not at risk. But I do not support such uses, I do not defend them, and I would sign appropriate legislation banning them. . . .

    I also understand that many who support this bill believe that any health exception is, as you suggest, a ‘loophole . . . to include any reason the mother so desires,’ such as youth, emotional stress, financial hardship or inconvenience. That is not the kind of exception I support.I support an exception that takes effect only where a woman faces real, serious adverse health consequences. . . . But people of good faith must recognize that there are also cases where the health risks facing a woman are deadly serious and real. It is in those cases that I believe an exception to the general ban on the procedure should be allowed. Further, I reject the view of those who suggest that it is impossible to draft a bill imposing real, stringent limits on the use of this procedure — a bill making crystal clear that the procedure may be used only in cases where a woman risks death or serious damage to her health, and in no other case. [italic emphasis in original; boldface emphasis added]

    In mid-October the Clinton campaign ran ads on about 100 Christian radio stations that stated:

    President Clinton wants a complete ban on late-term abortions except when the mother’s life is in danger or faces severe health risks,such as the inability to have another child. [emphasis added]

    On October 9, 1996, during his televised debate with Jack Kemp, Vice-president Gore said:

    President Clinton has made it clear that he will sign legislation outlawing procedures such as this if there is an exception to protect the health of the mother where serious health consequences, such as the inability to have any further children, are involved and her doctor advises her so. [emphasis added]

    At a televised news conference on December 13, 1996, President Clinton said:

    I wanted to sign that legislation. When I first heard about it, I thought I would sign it. . . . The problem is, I will say again, there are a few hundred women every year who have personally agonizing situations. . . .

    Now, I pleaded and I pleaded and I pleaded last time with the Congress to adopt highly restrictive language on this procedure, which would make it clear that there had to be a very serious health problem for the woman involved before it could be adopted. . . .

    On February 27, 1997, White House Press Secretary Mike McCurry said, “[President Clinton] indicated at the time he corresponded last with Congress that he would sign legislation banning that procedure if it had that [health] exception. That continues to be his position…” [emphasis added]

  3. The Actual Legislation Pushed by White House: All Exception, No BanThe vast majority of partial-birth abortions are performed in the fifth and sixth months on healthy babies of healthy mothers. From the time of the introduction of the bill in Congress in June, 1995, the strategy of pro-abortion advocacy groups and abortion-industry lobbyists was to — as accurately characterized by the AMA’s American Medical News in its March 4 story on the mea culpa of Ron Fitzsimmons — “to try to narrow the focus of the debate to third-trimester abortions, which are far fewer in number than those done in the late second trimester and more frequently done for reasons of fetal anomaly.” [For detailed discussion, see NRLC’s written testimony to the joint hearing before the Senate Judiciary Committee and the House Judiciary Constitution Subcommittee, March 11, 1997.]

    President Clinton’s numerous public statements justifying his veto, as quoted above, fitted precisely into that strategy. And as demonstrated above, in his public statements, Mr. Clinton said repeatedly that he would sign a “general ban” if Congress would only add a “minor,” “highly restrictive” amendment to permit use of the method only in rare cases in which he asserted that “severe physical damage” would otherwise result.

    But the White House has taken a drastically different posture on Capitol Hill. Instead of seeking a “minor amendment” for “severe physical damage,” the White House is backing an amendment that would completely “gut” the Partial-Birth Abortion Ban Act in three different ways.

    First and foremost: Despite his previous public promises, President Clinton’s agents have clearly communicated that Mr. Clinton will not sign “the bill” unless it is limited to the third trimester — which amounts to a vow to prevent any limitation on over 90% of partial-birth abortions. This change alone would mean that several thousand or more healthy babies of healthy mothers annually would suffer brutal deaths through partial-birth abortions performed in the fifth and sixth months of pregnancy.

    NBC News’ Tim Russert pinned down White House Chief of Staff Leon Panetta on this point on the Dec. 15, 1996 edition of Meet the Press:

    Russert: “Others are saying it’s not just the third trimester, but it’s also in the fourth [sic] and fifth and sixth months. Would the President be willing to look at a ban on abortions except for the life of the mother or severe impairment of her health, even in the second trimester?”

    Panetta: “The President doesn’t want to do anything that would violate Roe v. Wade…. But beyond that [the third trimester] the President, no, he would not go beyond that. He would want a woman to have the right to choose.”

    On March 5, 1997, one reporter questioned White House Press Secretary Mike McCurry about whether Clinton would indeed “sign the bill” if the health exception were added, or whether he is also demanding the removal of all of the fifth and sixth-month partial-birth abortions from the scope of the bill. Mr. McCurry replied lamely, “The difference between second-trimester ban and third-trimester ban is one I can’t address. It may be a little too technical for here.”

    At President Clinton’s March 7 press conference, NBC’s Jim Miklaszewski honed in directly on this central issue:

    Miklaszewski: It’s since been revealed that there are approximately 5,000 of these so-called partial-birth abortions performed every year — 90 percent of them in the fifth and sixth month. Would you now support a ban if it included provisions to protect the mother but would ban the procedure also in the fifth and sixth month?

    In response, President Clinton said that Ron Fitzsimmons’ statements had not been news to him: “I was under the impression that the facts are just as we all said they were, more or less what you said.” After another discourse regarding the women who, he insisted, require the procedure to preserve future childbearing capacity, Mr. Clinton said:

    I can’t answer the question that you asked me any clearer than that because I want to see the language of any proposed bill.

    President Clinton’s response, like Mr. McCurry’s, was evasive and deceptive. But President Clinton’s subordinates indicate that Leon Panetta’s December 15 statement on Meet the Press is still valid. For example, the Boston Globe (a faithful purveyor of the White House “line” on abortion issues) reported on March 8, “White House spokeswoman Mary Ellen Glynn said Clinton’s [March 7] remarks should be interpreted as an endorsement for a bill banning third-trimester abortions . . . with a very narrow exception for health reasons.” [emphasis added]

    The demand to exclude 90% of partial-birth abortions (those performed in the fifth and sixth months) from the scope of the ban, even taken alone, violates the repeated public assurances by President Clinton that he would sign “the bill” if a “minor,” “stringent,” “highly restrictive” amendment were added for “severe physical damage.”

    But it gets worse.

    Congressman Hoyer Acknowledges “Health” Means “Mental Health”

    When the House takes up the Partial-Birth Abortion Ban Act (HR 929) on Thursday, March 20, Rep. Steny Hoyer (D-Md.) will seek to offer a substitute measure that he calls the “Late-Term Abortion Restriction Act,” introduced on March 12 as HR 1032.

    Also on March 12, the Hoyer language was offered as an amendment to the Partial-Birth Abortion Ban Act in the House Judiciary Committee by Rep. Robert Scott (D-Va.), and was rejected on a party-line vote. Congressional Quarterly Weekly Report reported, “[The Scott-Hoyer amendment] reflects Clinton’s position and, according to Democrats, is necessary to make the bill acceptable to the courts.” (March 15, 1997, p. 643) At a March 12 press conference, Congressman Hoyer said, “I’ve talked to them [at the White House] enough about it that I think this [Hoyer bill] is consistent with his [Clinton’s] views as well.”

    The Hoyer bill would:

    • allow all methods of abortion, including partial-birth abortion, on demand until “viability”; and
    • empower the abortionist himself (“the attending physician”) to define what “viability” means; and
    • even after this self-defined “viability,” and even in the third-trimester, allow abortions to be performed by any method, including the partial-birth method, if “in the medical judgment of the attending physician, the abortion is necessary. . . to avert serious adverse health consequences to the woman.” [emphasis added]

    At a March 12 press conference in the House Radio-TV Gallery, which was tape-recorded, Congressman Hoyer was asked what the word “health” means in his amendment. Mr. Hoyer responded as follows:

    [We] included the language “serious adverse health consequences.” We’re not talking about a hangnail, we’re not talking about a headache. Does it include — and this is one of the things that the opponents of this particular legislation, the proponents of the pro-life position, would contend — does it include mental health? Yes, it does. [emphasis added]

    I point out that the overwhelming majority of Americans, and Members who vote on this floor, are for an exception for rape and incest. The exception of rape and incest, of course, is not because a pregnancy resulting from rape or incest causes a physical danger to the woman. It is because it poses a psychological trauma to the woman to carry to term, either because she is very young, impregnated by her father or brother or some other family member, or because she is raped. In the debate some years ago, for example, I used Willy Horton as an example. [End of Hoyer quote. Italics indicates Mr. Hoyer’s verbal emphasis; boldface emphasis was added]

    Thus, by the explicit statement of its author, the Hoyer substitute amendment would allow partial-birth abortions (and other abortions) even in the final three months of pregnancy, whenever an abortionist simply affirms that this would prevent “serious” “mental health” “consequences.” Further, Mr. Hoyer’s own interpretation of “mental health” is not limited to women who are, say, severely psychotic. Rather, Mr. Hoyer explicitly acknowledged that “serious. . . health” covers “psychological trauma.” Legally, the language is all-encompassing.

    Moreover, under the Hoyer measure, the abortionist himself decides what “viability” means. The Hoyer bill does not “regulate” the abortionist; rather, it empowers the abortionist to regulate himself. In real medical practice, “viability” begins at 23 weeks, when the baby’s lung development is sufficient to allow survival in about case in four. But late-term abortionists often have their own idiosyncratic notions of when “viability” occurs, which may have no relationship to neo-natal medicine or to the babies’ actual survival prospects.

    In short, the Hoyer bill does not “restrict” abortions after viability, nor does it “restrict” third-trimester abortions. Indeed, the Hoyer measure would be an empowerment by Congress for abortionists to perform third-trimester abortions with complete impunity.

    Under the Hoyer measure, Congress would confer on the abortionist himself explicit authority to judge, by his own standards and immune from review by any other authority: (1) what “viability” means, and (2) whether an abortion would prevent “serious” harm to “health,” including “mental health” or “psychological trauma,” in Mr. Hoyer’s words.

    Thus, under the Hoyer bill, it is impossible for an abortionist to perform an “illegal” third-trimester abortion, because he alone decides what is legal. Such a law would be a mere facade — it would not prevent a single partial-birth abortion, nor would it prevent a single third-trimester abortion.

    Thus, by the explicit statement of its author, the Hoyer substitute amendment would allow partial-birth abortions (and other abortions) even in the final three months of pregnancy, whenever an abortionist affirms this would prevent “mental health” problems. Further, Mr. Hoyer’s interpretation of “mental health” is not limited to women who are, say, severely psychotic. Rather, Mr. Hoyer explicitly acknowledged that “serious. . . health” covers “psychological trauma.”

    In short, the Hoyer bill is not a “restriction” on third-trimester abortions. It is an empowerment by Congress to perform third-trimester abortions with complete impunity. If this White House-backed effort were successful, the resulting law would be a mere facade — it would not prevent a single partial-birth abortion.

    “Mental Health” Exception: Not a Legal Quibble

    Mr. Hoyer’s explicit acknowledgment that “serious . . . health” includes “mental health” and “psychological trauma” is not merely a hypothetical legal point. The inventor of the partial-birth method, the late Dr. James McMahon, in June 1995 sent the House Judiciary Constitution Subcommittee a lengthy written submission, detailing and classifying a “series” of about 2,000 “intact dilation and evacuation” (as he called them) procedures that he had performed. Of this “series,” Dr. McMahon classified only 9% as being performed for any kind of “maternal [health] indication.” And of that group, the largest single group (22%) was for “depression.”

    Elsewhere in his submission, Dr. McMahon also explicitly acknowledged performing these partial-birth abortions even in the third trimester for “psychiatric” reasons and for “pediatric indications.” Dr. McMahon explained that the latter term referred not to a physical health condition, but to a youthful mother. [Documentation on request.}

    Boxer Amendment Redux

    Far from being an innovation or a compromise, the Hoyer bill (like the proposal which Sen. Tom Daschle has described) is nothing more than a re-packaged version of the unsuccessful amendment offered to the Partial-Birth Abortion Ban Act by Senator Boxer on December 7, 1995 — an amendment endorsed by the National Abortion and Reproductive Rights Action League (NARAL), and included in NARAL’s 1995 congressional “scorecard” as a “pro-choice vote.” The Boxer Amendment said:

    The prohibition… shall not apply to any abortion performed prior to the viability of the fetus, or after viability where, in the medical judgment of the attending physician, the abortion is necessary to preserve the life of the woman or avert serious adverse health consequences to the woman.

    “We were almost able to kill the bill,” Susan Cohen of the Alan Guttmacher Institute, referring to the close vote on the Boxer Amendment. [Congressional Quarterly Weekly Report, December 9, 1995, page 3738.]

    Supporters of the Hoyer Amendment insist that it differs from the Boxer Amendment, in that the Hoyer bill “applies” to all abortion methods — not only the partial-birth method. However, since the Hoyer bill empowers abortionists to perform third-trimester abortions at will, its ostensible application to a broader class of abortion procedures is irrelevant. Zero times one is zero, but zero times ten is also zero.

    Both the Boxer Amendment and the Hoyer bill are purely political contrivances — written to protect politicians, not pre-mature babies. They are designed to look good on paper, without imposing the slightest real impediment to any abortionist. As the national debate over partial-birth abortion continues to deepen, members of Congress should anticipate that the extreme pro-abortion policies embodied in the Clinton, Hoyer, and Daschle “phony bans” will become more and more evident to the public.

    What Does “Viability” Mean?

    In medical terms, “viability” is the point at which a baby born prematurely can be sustained by good medical assistance. Currently, a baby has about a one-in-four chance of survival a full three weeks before the “third trimester.” Therefore, most partial-birth abortions kill babies who are already “viable,” or who are at most a few weeks short of “viability,” in medical terms.

    However, it is important to note that when the term “viability” appears in proposals such as the Boxer Amendment or the Hoyer bill, the meaning is quite different. First: these formulations do not define “viability,” but rather grant total power to the abortionist himself to decide what “viability” means. This is, by analogy, comparable to a law by which Congress would ban any “assault weapon,” while including a provision empowering each gun dealer to determine what constitutes an “assault weapon.” Such language is not a restriction, but a license.

    In other words, under the Hoyer proposal, it would be logically impossible for any partial-birth abortion ever to be illegal, because the person who is supposedly being “regulated,” the abortionist, would have the sole authority to define the point at which the procedure becomes “illegal”! It is impossible to “violate” such a law.

    According to a press report, a spokeswoman for Dr. George Tiller of Kansas, who regularly performs third-trimester abortions, defended abortions through 26 weeks “because these fetuses are not capable of surviving outside the womb without artificial life supports.” [emphasis added] But the point at which the baby can survive “without artificial life supports” would be 34 weeks or even later. Under the Hoyer proposal, such a definition, however idiosyncratic, would be the only definition binding on that abortionist. [Dr. Tiller recent attracted some notice as a participant in one of the White House’s now-famous fundraising “coffees.”]

    Moreover, in 1995, partial-birth abortionist Dr. Martin Haskell testified in court that 24-week babies should not be presumed viable, because “fetal viability outside the womb at 23 to 24 weeks is about 3 percent.” According to the landmark 1987-88 NIH study by Heck, et al, the actual figure should be at least 23 percent — but under the Hoyer bill and similar formulas, only Haskell’s personal opinion is legally pertinent.

    There is another problem with using the term “viability” without defining it: if a criminal law bans abortions after “viability,” that term would have to be understood in the context of the standard of proof, which is “beyond a reasonable doubt.” Unless the baby was indeed well into the seventh month, a “reasonable doubt” might remain as to whether that particular baby would have survived, but for being killed by the partial-birth abortion. Thus, in the context of such a criminal law, the term “viability” really does mean “third trimester,” if it means anything at all.

    This particular difficulty is avoided by drawing a firm “time line” in the statute, as New York and Pennsylvania have done at 24 weeks. But such bright-line laws are invariably opposed by the abortion lobby, since they go beyond symbolism and might actually prevent an abortion.

    However, the Hoyer “killer substitute” amendment simply lacks any criminal penalty at all.

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