States Grapple With Late-Term Abortion Bans
By Sunny Kaplan, Staff Writer
Nearly three decades ago, the U.S. Supreme Court declared in the landmark case Roe v. Wade that women had a constitutional right to abortion. But in the last five years, the U.S. Congress and 30 states have bumped heads with that 1973 decision by passing bans on a certain type of late-term abortion, the so called "partial-birth" method, which involves partial delivery of the fetus.
Maine became the latest state to participate in this constitutional tug-of-war. On Nov. 2, voters in the Pine Tree State defeated a measure that would have banned the procedure by 55 to 45 percent. In 1998, voters defeated similar bans in Colorado and Washington State.
In Maine, the defeat marked the third time in recent years that such a ban was rejected -- the legislature failed to enact a ban in 1997 and again this year.
The fight over the issue triggered a television ad war in which each side is expected to have spent about $1 million by the time final campaign reports are filed. The fight pitted fundamentalist Christians, the Catholic Diocese of Portland and other foes of abortion against advocates for family planning, women's rights, civil liberties and other groups.
Opponents of the proposed ban said it was so vaguely worded it would have jeopardized the legality of more common types of abortions.
In 1999, the Colorado legislature, echoing what the voters decided a year earlier, rejected a "partial-birth" abortion ban. Missouri Gov. Mel Carnahan vetoed a ban in his state on July 12, but the state House and Senate voted in September to override it. However, enforcement of the ban has been delayed by a Federal district court pending litigation of the issue. A Federal court is also blocking Montana's new ban. In North Dakota the ban went unchallenged and is currently in force, and Michigan's new law is to become effective next spring.
In total, 30 states have banned most "partial-birth" abortions, but the laws are in force in only 12 of them. There are court injunctions against enforcing the laws in 17 states and the ban doesn't become effective in another state -- Michigan -- until next spring.
Ohio was the first to ban the procedure in 1995.
The New York-based Center for Reproductive Law and Policy, a pro-choice organization, calls the partial birth abortion bans "schemes" to undermine the Supreme Court decision, Roe v Wade , which established that the right to privacy found implicitly throughout the Bill of Rights, was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
"Partial-birth" abortion, a procedure known in medical terms as "intact dilation and extraction" or D&X, is a type of late term abortion in which labor is induced, a fetus is partially delivered with the exception of the skull, which is crushed or collapsed to aid in the rest of the delivery.
According to the Centers for Disease Control and Prevention, only 5.3 percent of abortions performed in the United States in 1993, the last year for which statistics are available, were performed after the 16th week of pregnancy. The CDC does not collect data on specific methods of abortion.
Abortion opponents liken the procedure to infanticide. "It's time for judicial activists to step aside and acknowledge that this procedure involves the destruction of an innocent human life. If America's founding principles are to be upheld, this horrific practice must stop," said Janet Parshall, spokesperson for the Family Research Council.
But pro-choice advocates say this type of abortion is performed in only rare instances, when the mother's life is in danger or when a severe abnormality exists in the fetus. They say that "partial-birth" abortion bans passed in states are overly vague and that they do not make exceptions for serious harm to a woman's health. They also say that the ban infringes on a woman's constitutional right to have an abortion.
"None of them (state "partial-birth" abortion bans) have a health exception. There are limited exceptions to save a woman's life. But what if a woman has cancer and her health is endangered because she can't get chemotherapy while pregnant? Or a women is diagnosed with diabetes or heart disease, which would make carrying pregnancies to term risky?" said Margie Kelly, spokesperson for the Center for Reproductive Law and Policy.
"They (abortion opponents) are not interested in a ban on a method, this is a deceptive campaign being played out in American politics to eliminate support for abortion," Kelly said.
In the latest court decision, a sharply divided federal appeals court upheld laws banning the late-term abortion procedure in Illinois and Wisconsin on Oct. 26.
But on Nov. 10 attorneys for abortion providers in Illinois and Wisconsin asked the U.S. 7th Circuit Court of Appeals to stay its decision while they appeal to the U.S. Supreme Court.
"The 7th Circuit has ... ignored even a semblance of fidelity to the Constitution and court precedent," said Janet Benshoof, president of the Center for Reproductive Law and Policy, which represents two Wisconsin abortion doctors.
If the Supreme Court agrees to hear the case, it would be the first time that the high court has reviewed the "partial-birth" abortion issue. On March 23, 1998, it declined to review an appeals court ruling invalidating Ohio's ban on certain methods of abortion.
Congress passed "partial-birth" abortion bans twice since 1995, but President Clinton vetoed both of them because they did not include an exception if continuing a pregnancy would jeopardize a woman's health. On Oct. 21 Senator Rick Santorum (R-PA) got a third bill passed, but failed to coax a veto-proof margin of victory for the ban. The President has indicated he will veto it if it makes it to his desk.