Communications Department

Partial-Birth Abortion Ban Passes U.S. Senate; Pro-Life Forces in House Work to Defeat “Phony Ban”

Apr 9, 2003 | PBA

WASHINGTON (April 5, 2003) – The Partial-Birth Abortion Ban Act has cleared one a major hurdle. On March 13, after three days of heated debate, the U.S. Senate passed its version of the bill (S. 3), sponsored by Senator Rick Santorum (R-Pa.), on a lopsided vote of 64-33.

However, two more major obstacles must be overcome before the bill – which the National Right to Life Committee helped to initiate in 1995 – can actually end the brutal method of killing a partially born baby.

First, the bill still faces concerted resistance from pro-abortion forces in the House of Representatives. Once that resistance is overcome and the bill is signed by President Bush, it will face immediate legal challenges in the federal courts, with its fate ultimately to be decided by the U.S. Supreme Court.

For most of a week in the Senate, opponents of the ban argued that the bill violates two U.S. Supreme Court rulings — Roe v. Wade, the 1973 ruling that legalized abortion on demand, andStenberg v. Carhart, a 2000 decision in which five justices held that Roe v. Wade covers even partial-birth abortions. The five-justice ruling struck down Nebraska’s ban on partial-birth abortion, and at the same time had the result of blocking enforcement of similar bans that had been enacted by more than half of the states.

Following the Senate’s approval of the ban, NRLC Legislative Director Douglas Johnson commented,“President Bush, 70 percent of the public, 64 senators, and four Supreme Court justices say there is no constitutional right to deliver most of a living baby and then puncture her head with a scissors. But five Supreme Court justices did say that partial-birth abortion is protected byRoe v. Wade, and 33 senators voted the same way. We hope that by the time this ban reaches the Supreme Court, at least five justices will be willing to reject such extremism in defense of abortion.”

According to a report in the March 29 edition of Congressional Quarterly Weekly Report, three pro-abortion groups “are coordinating efforts to challenge the bill in three different federal courts.” The groups are the Center for Reproductive Rights, the National Abortion Federation, and the Planned Parenthood Federation of America.

According to the report, “Lawyers from the three groups could file lawsuits challenging the measure ‘within hours’ of the law’s enactment, said Priscilla Smith, who will be the lead attorney for the Center for Reproductive Rights’ challenge.”

The Senate rejected two attempts to erase S. 3 and replace it with “phony ban” alternative bills that were sponsored by pro-abortion Senators Dick Durbin (D-Il.) and Dianne Feinstein (D-Ca.).

However, the Senate did attach a non-binding amendment, offered by Senator Tom Harkin (D-Iowa), endorsing Roe v. Wade. Seventeen senators who voted for the Harkin Amendment also later voted to pass the bill.

The Harkin Amendment has no legal force, and it is expected to be dropped from the bill in the future House-Senate conference committee that will finalize the bill before President Bush signs it. (Click here to see the key roll calls on amendments to and passage of the bill.)

In a written statement following the Senate vote, President Bush said, “Partial-birth abortion is an abhorrent procedure that offends human dignity, and I commend the Senate for passing legislation to ban it. Today’s action is an important step toward building a culture of life in America.”

Initial House Action

On March 25, the House Judiciary Constitution Subcommittee conducted a hearing on the House version of the bill (H.R. 760), which is sponsored by subcommittee Chairman Steve Chabot (R-Ohio).

Dr. Mark Neerhof, associate professor of obstetrics and gynecology at Northwestern University Medical School, testified that the method is “excruciatingly painful” for the baby. Simon Heller, an attorney associated with the Center for Reproductive Rights, argued that the bill violated the Supreme Court’s application of Roe v. Wade, but the measure was defended by Prof. Gerard Bradley of Notre Dame Law School.

On March 26, the full House Judiciary Committee approved H.R. 760 on a party-line vote of 19-11, with all Republicans voting in favor of the bill and all Democrats opposing it. The committee rejected numerous weakening and gutting amendments to the bill, all on party-line votes. As approved by the committee, the bill is identical to that passed by the Senate, except that it does not contain the Harkin Amendment.

No schedule has yet been announced for the full House to take up the bill. Currently, Congress is preoccupied with matters relating to the war in Iraq.

Hoyer-Greenwood “phony ban”

In the House, pro-abortion forces are attacking the bill in two ways.

First, they are promoting an alternative bill (H.R. 809), sponsored by Congressmen Steny Hoyer (D-Md.) and Jim Greenwood (R-Pa.).

Hoyer has solidly pro-abortion rating in NARAL scorecards, and Greenwood is co-chairman of the Pro-Choice Caucus.

Despite the pro-abortion credentials of the prime sponsors, advocates of the measure claim that it would restrict all methods of “late-term” abortions, and some gullible editorial writers and others have accepted this claim. However, NRLC and other pro-life groups call the bill “the phony ban.”

The Hoyer-Greenwood bill would actually allow abortion on demand by any method – including partial-birth abortion – until the abortionist himself declares that the baby is “viable.” Even after that point – indeed, up until birth – the bill would allow abortion by any method if the abortionist says it would “avert serious adverse health consequences to the woman.”

Hoyer and Greenwood have admitted in writing that this includes “mental health.”

Moreover, in a press conference on March 12, 1997, Hoyer suggested this “mental health” clause should apply when “it poses a psychological trauma to the woman to carry to term.”

“Many lawmakers who oppose the Partial-Birth Abortion Ban Act tell their constituents that they instead favor a bill to ban so-called ‘late-term’ abortions, with an exception for narrowly defined ‘health’ cases,” explained NRLC’s Douglas Johnson. “But in reality, these competing proposals are complete shams – hollow bills concocted to provide political cover for lawmakers who wish to keep perfect ratings with pro-abortion groups, while hoodwinking their constituents into believing that they oppose partial-birth abortions.

Regarding the Hoyer-Greenwood measure, Johnson commented, “Based on the explicit statements of Hoyer and Greenwood, it is clear that any lawmaker who votes for the Hoyer-Greenwood bill is voting to allow the killing of viable babies based on claims this is necessary to prevent psychological injury to the mother. Any lawmaker who votes to allow third-trimester abortions for emotional reasons should be prepared to defend that stance to their constituents.”

Hoyer, Greenwood, and other pro-abortion House members want to offer their bill as a “substitute amendment” on the House floor. If this “substitute amendment” were to be adopted by majority vote, the Partial-Birth Abortion Ban Act would be erased. It is not yet known whether the House Rules Committee will permit a vote on this substitute amendment.

Even if no such vote is permitted, however, there will very likely be a vote on a motion (called a “motion to recommit”) that would add a “health” exception to the ban – an exception so broadly worded that it would allow partial-birth abortion to be performed any time an abortionist asserted that it would benefit a woman’s emotional well-being.

If the House rejects these “killer” amendments and passes the ban intact, it will go to a House-Senate conference committee, which will write the final version. The conference committee will be controlled by lawmakers who support the bill, and they are expected to drop the pro-Roe Harkin Amendment that was added by the Senate.

Both houses must then approve the final version of the bill, which is called a “conference report.” The bill will then be sent to President Bush for his signature.

The January 2003 Gallup poll found that 70% favored and 25% opposed “a law that would make it illegal to perform a specific abortion procedure conducted in the last six months of pregnancy known as ‘partial birth abortion,’ except in cases necessary to save the life of the mother.”

Senate Republica Leadership Pushes Ban

Congress passed bans on partial-birth abortion in 1996 and 1997, but those bills were successfully vetoed by President Bill Clinton. Following the election of President Bush, the House again passed the ban in July of 2002, but Sen. Tom Daschle (D-SD), who at that time was Senate majority leader, refused to bring it up for a vote, thereby killing the bill for the year.

The Republicans won a one-seat Senate majority in the November, 2002 election, which made pro-life Senator Bill Frist (R-Tn.) the majority leader. Frist and other Senate Republican leaders promptly made the ban one of their “top ten” legislative priorities.

However, Senate approval came only after three days of often-heated debate. Senator Santorum spent many hours on the floor, arguing against hostile amendments and responding to misstatements of fact by pro-abortion senators.

Throughout much of the debate, Santorum and other pro-life senators displayed a series of large color illustrations of a partial-birth abortion.

Santorum and his allies turned back three attacks, any one of which could have killed the bill.

First, it was necessary to defeat a “substitute amendment” (alternative bill) offered by pro-abortion Senator Dick Durbin (D-Il.). Durbin claimed that his proposal would ban most partial-birth abortions, allowing only those needed to prevent “risk” of “grievous injury to her [the mother’s] physical health.” But NRLC pointed out that the amendment actually contained overlapping loopholes that resulted in its being “all exception and no ban.”

NRLC noted that when the Senate first considered a nearly identical proposal in 1997, Dr. Warren Hern, a leading practitioner of very late abortions who wrote the textbook Abortion Practice, commented, “I say every pregnancy carries a risk of death,” and therefore, “I will certify that any pregnancy is a threat to a woman’s life and could cause ‘grievous injury’ to her ‘physical health.’”

After extensive debate, the Senate rejected the Durbin Substitute,

60-38. Among those who voted against it were Senator Hillary Clinton (D-NY) and six other hard-core pro-abortion senators, “who apparently thought it looked too much like a real restriction, even though it was entirely hollow,” said NRLC’s Douglas Johnson.

Another alternative bill (“substitute amendment”) was offered by Senator Dianne Feinstein (D-Ca.). The Feinstein Substitute would have allowed abortion with no limitation whatever until the point that an abortionist declared a baby to be “viable,” and even after that based on any “health” claim whatever.

Supporters of the Feinstein Amendment did not deny that it would allow the killing of infants capable of surviving on their own – even in the final three months of pregnancy – for reasons of “mental health.” Indeed, Senator Clinton took the Senate floor to specifically defend that position, arguing, “If we have learned anything in the last several decades, it is that there is no artificial divide between mental and physical health. The mind and the body are a totally integrated system. One affects the other. I believe that mental health is health.”

The Feinstein Amendment also failed, 35-60. A motion by pro-abortion Senator Barbara Boxer (D-Ca.) to send the bill to the Senate Judiciary Committee, where it probably would have died, failed 42-56.

Frist Backs Ban

Majority Leader Frist, the only physician in the Senate, spoke in strong support of the ban on partial-birth abortions.

Frist said that experts believe “an infant . . . in fact, does feel horrific pain during the forcible manipulations and the stabbing of the skull during partial-birth abortion.”

“The only advantage of partial-birth abortion – which is a disturbing advantage – is the guarantee of a dead infant,” Frist said, adding, “Partial-birth abortion is more dangerous to the health of the mother than alternative procedures.”

“The passage of this legislation demonstrates how devastating the elections of 2002 were in giving control of the Senate to anti-choice leadership,” commented NARAL President Kate Michelman after the Senate approved the bill.


The NRLC website also contains the most extensive collection of resource materials on partial-birth abortion available anywhere on the internet.

The collection includes extensive documentation on all disputed issues surrounding partial-birth abortion. Much of this information is distilled in the testimony that NRLC presented to a joint hearing of the U.S. Senate Judiciary Committee and the U.S. House Judiciary Constitution Subcommittee in March 1997, which contains footnoted citations to many primary sources (including journalists’ interviews with partial-birth abortionists).

A recently published NRLC monograph, “Revival of Some Old Myths on Roe v. Wade and Partial-Birth Abortion,” critiques some “media myths” about partial-birth abortion and about Supreme Court decisions that bear on the subject, including Roe v. Wade.

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