Partial-Birth Abortion: A Chink in the Pro-Abortion Armor     2/22/2006
By Heather Sternberg Pulkistenis and Elizabeth Bossom

U.S. Supreme Court agrees to take case; could the end of this infamous procedure be in sight?

Revised: February 22, 2006

"In the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along. The abortion-rights folks know it, the anti-abortion folks know it, and so, probably, does everyone else."
- Ron Fitzsimmons
Executive Director for the National
Coalition of Abortion Providers
The New York Times, February 26, 1997

After eight years of effort, the pro-life community finally celebrated a law banning partial-birth abortion. Although his predecessor twice vetoed partial-birth abortion bans, President George W. Bush kept his word and signed the ban into law on November 5, 2003. Finally the end to this heinous procedure seemed to be in sight.

Over the previous decade, network television coverage of heated congressional debates on bills to ban partial-birth abortion made Americans aware of what had previously been a lesser-known abortion procedure. This procedure, called "partial-birth abortion," has forced many Americans to reconsider their own beliefs on the entire abortion issue. Although this abortion technique is only one of the many used to end the life of an unborn child, no other method has come under such intense public scrutiny since the 1973 Roe v. Wade Supreme Court decision that legalized abortion.

A Closer Look
Unlike abortion procedures in earlier months, a partial-birth abortion takes three days to complete. This method is performed on pre-born babies beginning at the fifth month of development. The abortionist begins by dilating the woman's cervix for two days. Then, on the third day, he uses forceps to deliver the entire baby except for the head. At this point, the abortionist uses blunt surgical scissors, or a trochar, to stab the baby at the base of the skull. He inserts a vacuum tube and sucks the child's brains out. Then he can collapse the skull and pull the dead baby through the cervical opening.

Dr. Martin Haskell, a physician who pioneered the technique along with the late Dr. James McMahon, noted that the three-day process often requires additional medical treatment for effects such as severe cramping, sleep disturbances and blood loss. Dr. Haskell warned that a partial-birth abortion may not be appropriate for some patients.

Since there are no reporting requirements for abortions, it is impossible to know for sure how many partial-birth abortions are performed annually. However, Ron Fitzsimmons, executive director for the National Coalition of Abortion Providers, admitted in a 1995 Nightline interview that he "lied through his teeth" about the number of partial-birth abortions performed each year. He conceded that such abortions are fairly common and performed on healthy fetuses.

During the initial debate over abortion, there were uncertainties as to whether the baby had a capacity to feel pain during the procedure. According to Dr. Jean A. Wright, associate professor of pediatrics and anesthesia at Emory University School of Medicine, the baby does feel pain. At the 19-20 week stage of development when many partial-birth abortions are performed, the baby may feel pain even more intensely because the brain has not yet developed the capabilities for blocking it.¹

The average cost for a partial-birth abortion ranges from $1,100 to $1,700, depending on the length of pregnancy.² This method of abortion is a lucrative business for those doctors willing to perform it.

A Rose Garden Veto
In the late 1990s, both houses of Congress voted overwhelmingly twice to ban the procedure. Yet each time, President Bill Clinton exercised his veto power. Both times, the House voted to override the veto, but the Senate fell short of the votes necessary to override.

President Clinton admitted that the procedure "appears inhumane," but said he wanted to preserve it for cases in which a woman's health was at stake.³

Despite the President's claims, the women featured at his first veto ceremony admitted their partial-birth abortions were elective; some cited genetic abnormalities. The president stated these women represented a small but vulnerable group. They all desperately wanted their children. They didn't want abortions. Only when they discovered that their babies would not survive did they make these agonizing decisions.⁴ But the truth is that the women would not have died nor been seriously injured if they carried their babies to full term. They made a choice, and their choice was death. It is interesting to note that the President refused to meet with other women who delivered their (live) babies in adverse circumstances, with no damage to their health or fertility.⁵

But is a woman's "health" an appropriate exception or is it simply a ruse by the abortion rights lobby who will concede no ground to aborting babies?

The Health Hazard
The pro-abortion lobby embarked on a campaign to kill the bill banning partial-birth abortions. Although it allowed for an exception for the mother's life, the opponents' weapon was to demand a "health" exception also. However, the "health" exception is deceptive.

No laws prevent a woman from obtaining an abortion in the United States for any reason, up through the ninth month of pregnancy. Even though most Americans understand that Roe v. Wade said that states could not restrict abortions in the early stages of pregnancy, many states also allow abortions in the last stages.

According to Doe v. Bolton, a Supreme Court case released on the same day as Roe v. Wade, the "health of the mother" includes a wide range of emotional and familial factors, including depression, psychological matters and her age. This broad definition is used to justify any abortion at any stage.

In 1992, in the infamous Casey decision, the Supreme Court ruled that the state can have an interest in protecting the unborn child if the baby is viable, that is, if the baby can survive outside the womb. But the restrictions could not be an "undue burden" on the women.

Dr. McMahon (who developed the partial-birth abortion technique) said that of the more than 2,000 partial-birth abortions that he had performed, only 9 percent were for any maternal [health] reasons. Of that 9 percent, the most common indication [reason] was "depression."⁶ Furthermore, he stated that about 80 percent of abortions he had performed after 21 weeks were "nonelective." However, under "nonelective" he included "depression," "pediatric indications" (i.e., the mother's youth), and a variety of fetal or maternal health problems that are not life-threatening.⁷ In other words, any excuse is considered a threat to the health of the mother.

The Future Fertility Fallacy
The abortion rights lobby used the mother's "future fertility" as another excuse for justifying partial-birth abortions. Abortion advocates claim that a woman would lose her ability to bear additional children if she carried a deformed baby to full term. But again, no medical evidence for this assertion exists. PHACT (Physicians' Ad Hoc Coalition for the Truth), a coalition of several hundred doctors who specialize in fetal medicine, came to the following conclusion:

Our research of the subject leads us to conclude that there are no obstetrical situations that would necessitate or even favor the medically unrecognized partial-birth abortion procedure as the safest or most appropriate option. Indeed, we have concerns that the procedure may itself pose serious health risks for women.⁸

According to PHACT, the threats to her future fertility include a condition called "incompetent cervix" that is the leading cause of premature delivery. This is where the cervix loses its elasticity and is unable to retain the growing fetus. In addition, the partial-birth abortion is an invitation to infection and subsequent infertility. Pulling a child feet first out of the mother could seriously injure her or cause her death because the procedure risks tearing her uterus or lacerating the cervix or lower uterine segment. Doctors continue to speak out against partial-birth abortion:

I cannot think of a fetal condition or malformation, no matter how severe, that actually causes harm or risk to the mother of continuing the pregnancy. I guess one extremely rare example might be a partial hydatidiform mole. But that's a one in a million situation. -Testimony of Dr. Harlan R. Giles⁹

You really can't defend it. ... I would dispute any statement that this is the safest procedure to use. -- Dr. Warren Hern, author of the nation's most widely used textbook on late-term abortions¹⁰

Even the American Medical Association (AMA) supported the 1997 bill to ban partial-birth abortion.¹¹ A member of the AMA's legislative council announced that the procedure was "basically repulsive."¹²

Hype and Hypocrisy
Pro-abortion advocates had claimed that anesthesia given to pregnant women actually kills the fetus before a partial-birth abortion is completed. For quite some time, Kate Michelman, former president of NARAL Pro-Choice America (formerly the National Abortion and Reproductive Rights Action League), and Dr. Mary Campbell of Planned Parenthood, among others, said that there was no such thing as a "partial birth," and the baby felt no pain. Members of the medical community were outraged by this, including the American Society of Anesthesiologists, who testified that Michelman's statement was completely false and had absolutely no scientific basis. In fact, this irresponsible claim caused pregnant women to fear having anesthesia when undergoing procedures such as caesarean sections.

Dr. Jean Wright testified to a congressional committee that pre-born babies feel pain more intensely than adults. Unborn infants have pain receptors on their face by seven weeks of development, and over their entire body by the 20th week. Further, newborns react to pain with three to five times the response of adults.¹³ The baby is alive and feels pain during the procedure.

Why So Late?
Convenience is the primary reason that women seek late-term abortions. Even abortion-rights advocates admit this. In 1993, the National Abortion Federation told its members: "Don't apologize. There are many reasons why women have late abortions … lack of money or health insurance, social or psychological crisis, lack of knowledge of human reproduction."¹⁴

A Washington Post investigative report described those who elect to have partial-birth abortions in the following way: "The 'typical' patients tend to be young, low-income women, often poorly educated or naive, whose reasons for waiting so long to end their pregnancies are rarely medical."¹⁵

Another lie that continues to circulate is that this procedure is performed mainly on babies with genetic abnormalities. Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers (a pro-abortion lobbying organization), had this to say to The New York Times on February 27, 1997:

In the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along. The abortion-rights folks know it, the anti-abortion folks know it, and so, probably, does everyone else.

For example, on June 30, 1998, a 17-year-old girl walked into the A-Z Women's Center in Phoenix, Arizona, to receive a partial-birth abortion. The abortionist, Dr. John Biskind, claimed that ultrasound testing determined the unborn baby to be 23.6 weeks along. During the abortion, Dr. Biskind "discovered" the baby was much further along-37 weeks. Instead, he delivered the 6-pound, 2-ounce girl, who suffered a skull fracture and cuts on her face. Dr. Biskind is known to have caused the bleeding deaths of at least two women on which he performed abortions.¹⁶

A minuscule number of women seeking late-term abortions are mothers who discover that they are pregnant with a child with special needs, such as Down's syndrome, cleft palate, or other genetic abnormalities.

Donna Joy Watts was one of these children.

Death Sentence Commuted
Lori Watts was told that the child she was carrying had a rare condition in which the brain's hemispheres do not fuse. She was advised to abort her baby and was informed of the partial-birth abortion procedure. Calmly, doctors told her how they would collapse the baby's skull by stabbing the back of its head and suctioning out its brain. Mrs. Watts vehemently refused. Her doctors did not want her to carry the child to full term, and she had to "force" her obstetricians to deliver her baby. Even when she was three days old, the doctors continued to deny the humanity of baby "Donna Joy." They still called her a "fetus."

The odds were against this child. She could not eat and was on the verge of starvation. Mrs. Watts prayed to God, and the answer was a wrong meal tray sent to her room. She took a mixture of fruit and cereal and tried once more to feed her baby. Miraculously, the mixture stayed down. It took years of love and patience, but the Watts continued their efforts. Today, Donna Joy is a testimony to their effort and diligence. Her mental and physical levels have improved tremendously. Doctors predicted that she would never walk or feed herself. Yet Donna Joy, who only has half a brain, can do both. The little girl also loves to play with the family puppy, answer questions in Sunday school class, recite the alphabet and play computer games. And as for mother Lori's "health and future fertility," she has since given birth to her fourth daughter, Shaylah.¹⁷

A death sentence should not be rendered to a child who is diagnosed with a genetic or abnormal condition. When families decide to raise-not abort-these special children, they often prove to be a blessing-not a burden-for the entire family.

The States
Throughout the 1990's, public outcry against partial-birth abortion grew increasingly strong. Even though President Clinton twice vetoed bills to ban the procedure, state legislators passed their own partial-birth abortion bans. Eventually, 31 states passed laws to ban the procedure. But before most of the laws went into effect, the Supreme Court decided to weigh in on the issue.

Problems in the Courts
The conflict over partial-birth abortion reached a climax on a rainy day in the summer of 2000. The Supreme Court heard arguments in Stenberg v. Carhart, a case that questioned the constitutionality of Nebraska's state ban on partial-birth abortion. Abortion doctor LeRoy Carhart, represented by the Center for Reproductive Law and Policy, faced off with Nebraska Attorney General Don Stenberg over a partial-birth abortion ban passed in Nebraska three years earlier. In a 5-4 decision, the Court struck down the Nebraska ban, saying that because the language of the legislation was too vague, the wording could be construed to ban dilation and evacuation (D&E) abortions as well as the intended dilation and extraction (D&X) abortions. (In the D&E procedure, the fetus is dismembered while still inside the womb and the body parts are removed piece by piece.)

The argument that the wording is too vague is rather interesting since the procedure is not formally recognized. The doctors of PHACT noted this inconsistency, saying,

There is no single, standard, medical term for partial-birth abortion. Claims that there is such a medically recognized name are false. The only purpose for medically sounding coinages is to give the general public the impression that the partial-birth abortion procedure possesses a degree of medical legitimacy, which it does not.¹⁸

The Court faulted lawmakers for trying to outlaw one abortion procedure because it may be construed to also outlaw other abortion procedures. A second problem for the Court was that the law failed to include an exception for the health of the mother. The Court ignored medical experts'--and even abortionists'--statements that partial-birth abortion is never medically necessary to help the health of the mother.

In Stenberg v. Carhart, Justices John Paul Stevens, Sandra Day O'Connor, David Souter, Ruth Bader Ginsburg and Stephen Breyer made an illegitimate decision that far exceeded their authority. In her opinion, Supreme Court Justice Sandra Day O'Connor said, "[A] ban on partial-birth abortion that only prescribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional."¹⁹

Why should a ban include a health exception when the leading medical associations in America say that the procedure is never the preferred method for a woman's protection? The Supreme Court sided with an extreme segment of the abortion lobby that even some abortionists do not support. In their opinion, an abortionist has the right to use whatever method he desires, regardless of what is best for the mother or her unborn babies.

Moreover, the Court went far beyond the boundaries set by Roe v. Wade, a ruling that dealt with in-utero fetuses. As columnist George Will described it, "In Roe v. Wade, which arose in Texas, the court left standing a Texas law prohibiting 'the killing of an unborn child during parturition,' meaning the killing of an infant 'in the state of being born and before actual birth.'"²⁰ With the partial-birth abortion procedure, the child no longer resides in the uterus and is, in fact, partially delivered. The partial-birth abortion ban does not conflict with Roe v. Wade because the ban does not deal with fetuses in utero. Rather, it deals with an infant in parturition.

Planned Parenthood's Plunder
Pro-abortion groups were delighted but cautiously optimistic about the Supreme Court ruling in Stenberg. "Even with the Supreme Court decision, they [pro-life opponents] won't be bowed in their determination," said NARAL's Kate Michelman. "They will be on our doorstep for sure."²¹ Indeed, the battle over partial-birth abortion is far from over.

The irony was that Planned Parenthood, an organization that advocates the use of partial-birth abortions, once confessed that abortion is a threat to a woman's health and future fertility. A 1963 pamphlet called "Plan Your Children for Health and Happiness" said this: "An abortion kills the life of a baby after it has begun. It is dangerous to your life and health."²² Yet less than four decades later, Planned Parenthood was more concerned about scoring points with women who need a political cause-and less concerned about the woman in a crisis situation.

Renewed Resolve
While Planned Parenthood was happy with the Supreme Court decision in Stenberg, the majority of Americans were not. In an October 2000 Gallup Poll, 63 percent of Americans said that the specific procedure known as "partial-birth abortion" should be illegal except if necessary to save the life of the mother.²³

In response, Rep. Steve Chabot (R-Ohio) and Sen. Rick Santorum (R-Pennsylvania) introduced a new bill in 2003 that addressed the Supreme Court's misunderstandings. It clearly defined the partial-birth abortion procedure and was based on congressional testimony from medical experts that partial-birth abortion is never medically necessary.

Finally, the pro-life convictions of Americans were rewarded when President George W. Bush signed the ban on partial-birth abortion.

Immediately after the bill became law, judges in California, Nebraska and New York issued temporary restraining orders to block its enforcement. Planned Parenthood Federation of America, National Abortion Federation, Center for Reproductive Rights, and abortion doctors from Iowa, Nebraska, New York and Virginia brought the lawsuits. All three federal courts of appeals overturned the ban, stating that they were bound by the Supreme Court's previous decision in Stenberg v. Carhart. The U.S. Supreme Court announced on February 21, 2006, that it would take the case, and with Sandra Day O'Connor now replaced by Justice Samuel Alito, the Court could rule differently.

As former Sen. Daniel Patrick Moynihan observed, "This is too close to infanticide."

1. Joint Hearing Before the Senate Judiciary Committee and the Constitution Subcommittee of the U.S. House Judiciary Committee, Partial-Birth Abortion Ban Act: Testimony of Douglas Johnson, Legislative Director for the National Right to Life Committee, 105th Congress, 1st Session, March 11, 1997.
2. Susan Dudley, Ph.D., and Stephanie Mueller, "Economics of Abortion," National Abortion Federation Fact Sheet 2000, as found at www.prochoice.org/Facts/Factsheets/FS6.htm.
3. "Statement on Partial-Birth Abortion to the House of Representatives" by William J. Clinton, White House Office of the Press Secretary, April 10, 1996, as found at clinton6.nara.gov/1996/04/1996-04-10-statement-on-partial-birth-abortion-veto.html.
4. Ibid.
5. Jeanie French's July 17 letter to President Clinton to request a meeting as described at www.nrlc.org/abortion/pba/pbafact11.html and also "Partial-Birth Abortion is Bad Medicine," The Wall Street Journal, signatories to the editorial included Nancy Romer, M.D., Pamela Smith, M.D., Curtis R. Cook, M.D., Joseph L. DeCook, M.D., on behalf of PHACT, September 19, 1996, A22.
6. Dr. McMahon's submission of June 8, 1995, is referenced in the Congressional Record, "Partial-Birth Abortion Ban Act of 1995 Hearing Before the Subcommittee on the Constitution of the Committee on the Judiciary," 104th Congress, First Session, November 1, 1995, as found at frwebgate6.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=266396236038+2+0+0&WAISaction=retrieve.
7. American Medical News, June 5, 1993.
8. Letter to Fredric Frigoletto, Jr., M.D., President of the Executive Board of American College of Obstetricians and Gynecologists, from PHACT, January 29, 1997, as found at www.geocities.com/CapitolHill/9707/frigol.html.
9. U.S. Federal District Court for the Southern District of Ohio, transcript of testimony of Dr. Harlan R. Giles, November 13, 1995, 240.
10. "Outlawing Abortion Method, An Interview with Dr. Warren Hern," American Medical News, November 20, 1995, 3.
11. Jean A. Wright, M.D., M.B.A., "Advances in the Understanding of Fetal Pain," Christian Medical Association White Paper, 2002, as found at www.cmdahome.org.CONTEXT=art&cat=317&art=1261&BISKIT=<&BISKIT>.
12. Vida Foubister, "Supreme Court Rulings on Abortion Reinforce Physician's Right to Make Medical Decisions," American Medical News, July 24, 2000, as found at ama-assn.org/sci-pubs/amnews/pick_00/prsa/0724.htm.
13. Op cit.
14. National Abortion Federation memo to members, June 18, 1993.
15. Barbara Vobejda and David Brown, "Discomforting Details of Late-Term Abortions Intensify Dispute," The Washington Post, September 17, 1996.
16. Susie Steckner and Jodie Snyder, "Biskind Charged With Manslaughter," Arizona Republic, January 13, 1999, and at "A-Z Women's Center," Kaiser Daily Reproductive Health Report as found at http://report.kff.org/archive/repro/1998/12/kr981216.3.html.
17. "Senate Record Vote Analysis of Partial-Birth Abortion Ban/Final Passage," compiled and written by staff of the Republican Policy Committee, Page S-12997 Temp. Record, October 21,1999, as found at www.senate.gov/~rpc/rva/1061/1061340.pdf.
18. "Partial-Birth Abortion: The Name Game," PHACT statement, May 13, 1997, as found at www.geocities.com/CapitolHill/9707/namegam.html.
19. Concurring opinion of Sandra Day O'Connor as quoted in Brief for the United States of America as Amicus Curiae Supporting Reversal in Women's Medical Professional Corporation v.Taft, No. 01-4124, as found at cwfa.org/library/life/2002-02-06_doj-oh-pba-brief.rtf.
20. George F. Will, "An Act of Judicial Infamy," The Washington Post, June 29, 2000, A 31.
21. "Pro-Life Leaders Consider Next Move," Associated Press, January 26, 2001.
22. "Plan Your Children for Health and Happiness," Planned Parenthood Federation of America, New York, 1963 as cited by George Grant, Grand Illusions, Adroit Press, Franklin, Tennessee, Second Edition, 1992, p.77.
23. Lydia Said, "Public Opinion about Abortion," Gallup Poll Special Report, 2002, as found at www.gallup.com/poll/specialreports/pollsummaries/sr020122iii.asp.

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