An Alternative to the Partial Birth Abortion Ban Act:
The Preferable, Constitutional Legislation Congress Declined to Enact

By ALEC WALEN

Monday, Jun. 16, 2003

Just over a week ago, the House of Representatives passed a bill outlawing what are known as "partial birth abortions" (PBAs). In these procedures, the fetus is partially delivered, but while its head is still inside the womb, an implement is used to puncture its skull. Its brains are then sucked out, killing the fetus and making it easier to remove the fetus from the woman.

Soon the House and Senate versions of the bill will be reconciled, and the resulting bill will be passed again by both chambers. And President Bush has indicated that he is ready, and indeed eager, to sign the bill into law - as the Partial Birth Abortion Ban Act (PBABA). In the end, however, the PBABA is a pointless piece of political grandstanding. It is plainly unconstitutional under a recent Supreme Court decision, and even if it were not, it would not do much to achieve any meaningful goal.

All this will be familiar to many readers from recent headlines. But what did not make headlines is that a much better bill was voted down in the House. It is called the Late Term Abortion Restriction Act (LTARA).

I believe that late term abortions, of viable fetuses, are morally objectionable. (In an earlier column for this site, I made that point in the context of justifying abortion rights for pre-viable fetuses if Roe v. Wade is overturned. This column addresses only the late-term abortions of viable fetuses that Roe currently allows states to regulate.)

However, I also think the PBABA approaches the problem of late-term abortions of viable fetuses in a wrongheaded and pointless way. That is all the more disturbing in light of the fact that Congress passed up the chance to enable the LTARA.

The PBABA is Plainly Unconstitutional Under Recent Supreme Court Precedent

Stenberg v. Carhart is the Supreme Court decision that virtually guarantees the demise of the PBABA. In that case, in 2000, the Court struck down Nebraska's nearly identical PBABA - because, among other reasons, it had no "health of the mother" exception. (It allowed PBAs only when necessary to save the life of the mother.)

So what were the members of Congress who approved the PBABA, 282-139, thinking? They claim that a Congressional fact finding - that PBA "is never medically indicated to preserve the health of the mother" - will save their bill. For if that finding is accepted as true, then it follows that there is no need for a health exception. (Of course, it also follows that there is no need for an exception for the life of the mother either. That the PBABA still has that exception undermines the sincerity of the fact finding.)

Congresses' strategy is very unlikely to work. This fact finding is plainly included to evade Supreme Court precedent, and there is no consensus in the medical community in support of it.

Indeed, respected medical organizations believe PBAs may be safer than the alternative in certain circumstances. Most notably, the American College of Obstetricians and Gynecologists has stated that a PBA may be "the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman." This group represents approximately 95 percent of all board-certified obstetricians and gynecologists practicing in the U.S..

Another possible explanation of what Congress is doing is that it is anticipating a more pro-life Supreme Court would overrule Stenberg v. Carhart. While this is possible, it is also unlikely.

Granted, there may be a number of retirements from the Court in the near future. And, granted, with Bush in the White House and Republicans in control of the Senate, future justices are likely to be pro-life.

Nevertheless, unless and until the Court is ready to overrule Roe v. Wade, it is unlikely to let Congress evade its decision in Carhart. As shown by a number of cases in the past few years, including U.S. v. Morrison and City of Boerne v. Flores, the Court as an institution is jealous of its power and does not look favorably on Congress trying to evade its decisions.

The PBABA Will Be Ineffective In Achieving Its Goals, In Any Event

Meanwhile, even if the PBABA's application is not immediately enjoined by the first federal district court to hear the issue (as seems likely), the Act will still predictably fail to achieve any meaningful objectives.

The PBABA prohibits only one method of performing late term abortions; women can still resort to others. And the other commonly-used method - which involves cutting up the fetus in the womb, and extracting it in pieces - is hardly less gruesome or horrible. Indeed, the main difference is, as U.S. Court of Appeals Judge Richard Posner put it in his dissenting opinion in Hope Clinic v. Ryan, "the position of the feet."

It is hardly clear, then, that the PBABA would, on balance, do any good. What little good it may do is balanced off by the harm it is likely to cause.

The Better Bill: The LTARA

In sum, the PBABA is both unconstitutional and ineffective. Of course, to those who oppose abortion rights, any restriction on abortion may feel like a victory. But a much better bill, worthy of support by both pro-choice and pro-life people was on the table. The Late Term Abortion Restriction Act (LTARA), unlike the PBABA would have been both constitutional and effective. Congress plainly should have passed it instead.

First, the LTARA did not conflict with Stenberg v. Carhart - and thus, the Constitution. Unlike the PBABA, it included a "health of the mother" exception.

Second, the LTARA did not focus on a single kind of late-term abortion. Rather, it focused on all abortions of viable fetuses. Such abortions, it would have mandated, would be available only if "abortion is necessary to preserve the life of the woman or to avert serious adverse health consequences to the woman." (It is worth noting that another problem with the PBABA is that it would impose restrictions on abortions of pre-viable as well as viable fetuses.)

Unlike the PBABA, then, the LTARA would have been effective in preventing unnecessary late-term abortions of fetuses - who are little different from infants, for they can be delivered live. And at the same time, it would not have imperiled the health or lives of women who genuinely need such abortions.

Does "Health of the Mother" Undercut the Utility of the LTARA?

Why didn't Congress pass the LTARA, rather than the PBARA?

Objectors claimed that including the health exception would give away the game. It would, they claim, allow women and their doctors to describe any bothersome mental or physical symptom as a health problem.

But the real bogeyman for opponents of the LTARA seems to be the belief that the health exception would have to encompass a "mental health" exception - eligibility for which could be easily faked. The result, according to Representative Sensenbrenner, would be "a giant loophole that [would] allow[] abortionists to perform partial-birth and third-trimester abortions at will."

Is that true? Not necessarily.

First, the Supreme Court has not yet decided whether the Constitution requires a mental health exception to a ban on the abortion of viable fetuses. Thus, unlike the PBABA, the LTARA at least would have had a fighting chance of being held constitutional.

Indeed, the Court might well uphold a ban on abortion of viable fetuses without a mental health exception. Justices Thomas and Scalia - in a dissent from a denial of certiorari - have said, in no uncertain terms, that the Court's case law "in no way supports the proposition that, after viability, a mental health exception is required as a matter of federal constitutional law."

Moreover, even the case those Justices wanted to review - and, presumably, reverse - when they made this statement, did not itself require a broad mental health exception.

Rather, the 1997 decision, Women's Medical Professional Corporation v. Voinovich - issued by the U.S. Court of Appeals for the Sixth Circuit - held that such an exception is required only when "a woman is faced with the risk of severe psychological or emotional injury which may be irreversible" if she does not have an abortion.

After viability, that is virtually never - perhaps literally never - the case, because live delivery is an option. (That is what viability means, after all - that the baby can be delivered alive, and survive independent of the woman.)

Consider typical mental health issues that might arise. Pregnancy and its hormonal changes may have driven a woman into a deepening clinical depression. Or, a woman may have had to stop taking needed medication for mental illness for fear of harming the fetus. Either live delivery or abortion will address the problem. Given the choice, her mental health needs can be just as well met by live delivery.

But what if the live delivery, resulting in the woman having given birth to a child, is itself psychologically traumatic to the woman - more so than the alternative abortion - since it produces an unwanted child? This kind of psychological trauma should not carry weight. After all, if it did, it would justify infanticide as well.

In contrast, the Late Term Abortion Restriction Act could have done some real good. It likely would have been upheld as constitutional by the Supreme Court. And it would have properly banned abortions of viable fetuses unless the woman really needed an abortion to protect her health or life. That is the proper line to draw, and it is one that is fair to both fetus and mother, as well as one that we are well capable of policing.


Alec Walen teaches philosophy of law at the University of Baltimore. He is currently working on a book on Intention and Permissibility. His email address is awalen@ubmail.ubalt.edu.

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