Q. What is a partial-birth abortion?
A. The term "partial-birth abortion" describes a late term abortion procedure also known as Dilation and Extraction (D & X). This particular abortion method first came under public scrutiny after a 1992 presentation by abortionist Martin Haskell in which Haskell graphically described the D & X abortion technique.1
According to Haskell's presentation, the initial step in performing a partial-birth abortion involves two days of dilating the mother’s cervix. Afterward, the abortionist uses an ultrasound probe to locate the lower extremities of the preborn baby. He then works large grasping forceps through the mother’s vagina and cervix, and into her uterus. The abortionist grasps a leg of the baby with the forceps and pulls the leg into the mother’s vagina. "With a lower extremity in the vagina, the surgeon uses his fingers to deliver the opposite lower extremity, then the torso, the shoulders and the upper extremities. The skull lodges at the internal cervical os,"2Haskell explained.
While clutching the baby’s upper body, the abortionist "takes a pair of blunt curved Metzenbaum scissors. . . . He carefully advances the tip, curve down, along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger. . . . The surgeon then forces the scissors into the base of the opening. The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely from the patient."3
Q. Are Partial-Birth Abortions Medically Necessary to Save the Mother’s Life or Protect Her From Injury?
A. "With all that modern medicine has to offer, partial-birth abortions are not needed to save the life of the mother, and the procedure’s impact on a woman’s cervix can put future pregnancies at risk."
Former Surgeon General C. Everett Koop, M.D. Letter to the Editor The New York Times, September 26, 1996
"Most partial-birth abortions are performed on healthy mothers with healthy babies," and "there is no obstetrical situation that requires the willful destruction of a partially delivered baby to protect the life, health or future of a woman."
Nancy Romer, M.D., Curtis Cook, M.D., Pamela Smith, M.D. and Joseph DeCook, M.D. Letter to the Editor The Wall Street Journal, October 14, 1996
Q. What does the American Medical Association(AMA) say about Partial-Birth Abortions?
A. "Our panel could not find any identified circumstance in which the procedure was the only safe and effective abortion method." (The AMA supported the federal ban passed by Congress and vetoed by President Clinton.)
Daniel H. Johnson Jr., M.D. President, American Medical Association Letter to the Editor The New York Times, May 26, 1997
Q. How many partial-birth abortions are performed each year?
A. It is difficult to know precisely how many partial-birth abortions are performed each year, as state reporting requirements for abortion vary. A report published in Perspectives on Sexual and Reproductive Health in January 2003 estimates that 2,200 partial-birth abortions were performed in 2000, representing 0.17 percent of all abortions performed that year. 4 Prior to this report, abortion supporters insisted that only about 500 partial-birth abortions are performed annually.5 However, Martin Haskell, the abortionist who developed the abortion method, reported in 1992 that he performed more than 700 partial-birth abortions in his practice. 6 Furthermore, according to one New Jersey newspaper, physicians in that state admit performing at least 1,500 partial-birth abortions a year - three times the national number initially claimed by abortion advocates. 7
Q. Why are partial-birth abortions performed?
A. Reasons for performing partial-birth abortions also vary. Supporters of partial-birth abortion say that the majority of partial-birth abortions take place in cases where the fetus suffers from abnormalities or severe defects.8 However, Haskell told one publication that most of his partial-birth abortions were elective, meaning there was no medical reason for the abortion.9 Ohio abortionist Martin Ruddock disclosed that more than one-half of his partial-birth abortions involve normal fetuses.10
Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers, confessed to that he "lied through [his] teeth" during a 1995 interview with ABC’s "Nightline" when he stated that women had partial-birth abortions only in the most extreme circumstances of life endangerment or fetal anomaly. Fitzsimmons went on to say that a vast majority of these abortions are performed on healthy babies and healthy mothers.11
Q. What states have passed partial-birth abortion bans?
A. As of October 1, 1999, 29 states have passed bans on partial-birth abortions: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio,12 Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wisconsin.
Q. What is the status of these laws?
A. Prior to the summer of 2000, the status of these laws was mixed, with some in effect and others the subject of court challenges. On June 28, 2000, the U.S. Supreme Court issued a ruling in the case of Stenberg vs. Carhart, which questioned the constitutionality of Nebraska’s ban on partial-birth abortions. The court, in a 5-4 decision, ruled that Nebraska’s law was unconstitutional, effectively striking down all state laws banning partial-birth abortion.
The Court rejected the Nebraska law on two grounds:
• It does not clearly distinguish between partial-birth abortion (dilation and extraction, or "D&X") and the most commonly used late-term abortion procedure (dilation and evacuation,or "D&E")
• It does not include an exception for the health of the mother
In her concurring opinion, Justice Sandra Day O’Connor states that laws that meet these two criteria would be, in her view, constitutional. However, pro-life legal experts say that based on past court rulings, an exception for the mother’s health is broadly interpreted (based on health exception language in the 1973 Doe v. Bolton ruling) and would render the ban worthless.13
Q. Didn’t Congress vote to ban partial-birth abortions?
A. Yes, several times. In 1995 and 1997, the U.S. House of Representatives and U.S. Senate voted to prohibit partial-birth abortions. Both times President Clinton vetoed the legislation. In response, the House voted twice to override the president’s vetoes.14 Twice the Senate attempted overrides and failed by as few as three votes. The third time Congress passed the ban - the Senate in 1999 and the House in 2000 - the bill died in conference committee.
On March 13, 2003, the Senate approved a new version of the ban on a vote of 64-33. The House of Representatives followed suit on June 4, 2003 by a vote margin of 282-139. 15 The measure was signed into law by President George W. Bush on November 4, 2003 and immediately challenged in court by abortion proponents. Federal judges in California, Nebraska and New York responded by preventing enforcement of the law nationwide. 16
In early 2004, court hearings were held in three locations: San Francisco, Lincoln (Nebraska) and New York City. By September, all three judges hearing challenges to the law declared it unconstitutional: U.S. District Judge Phyllis Hamilton in San Francisco in June; U.S. District Judge Richard Casey in New York City in August; and U.S. District Judge Richard Koft in Lincoln in September. The U.S. Justice Department has filed appeals in the San Francisco and Lincoln rulings. 17
All three judges cited the absense of a "health" exception in the federal law. However, the "Partial-Birth Abortion Ban Act of 2003" contains the following language:
"This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself." 18
Even this “physical health of the mother” exception was insufficient due to the definition of health set forth by the U.S. Supreme Court in Doe v. Bolton:
“We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the wellbeing of the patient. All these factors may relate to health.” 19
Supporters of the partial-birth abortion ban contend this all-encompassing definition of health will continue to be the downfall of abortion-restriction legislation until the Supreme Court overturns Doe and its companion case, Roe v. Wade.
The U.S. Department of Justice is appealing all three rulings, a step that will likely put the issue back before the U.S. Supreme Court.
(This page was originally posted on June 23, 2003.)
Carrie Gordon Earll is the Senior Policy Analyst for Bioethics at Focus on the Family and a fellow with the Center for Bioethics and Human Dignity.
