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D&X / PBA Procedures:

Failed attempts to pass a federal law
outlawing the practice: 1995 to 1997.
Part 1

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1995 Federal bill to ban D&X procedures

Rep. Canady (R-FL), supported by 28 other members introduced resolution HR 1833 1995-JUN-14 to the House of Representatives. If passed, it would have been given the short title of "Partial-Birth Abortion Ban of 1995." Chapter 74 would have been added to Title 18 of the United States Code. Section 1531 would state:

bullet (a) Whoever, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than two years, or both.

bullet (b) As used in this section, the term 'partial-birth abortion' means an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.

The bill would have allowed a physician to defend the use of a D&X procedure if "the partial-birth abortion was necessary to save the life of the woman upon whom it was performed, and no other form of abortion would suffice for that purpose." [In most cases, a hysterotomy could be performed. However, it is major surgery, involves much higher infection risks to the woman, and can have a severe negative impact on future pregnancies.] 

Senate hearings were held, starting in mid 1995-NOV. An enormous amount of conflicting and mutually exclusive testimony was given (US Senate Hearing Report 104-260). As in war, truth is often the first casualty in controversial religious topics:

bullet Some testimony revealed that state laws concerning third trimester abortions and/or state medical society regulations have been violated by physicians. D&X procedures had been conducted for elective reasons: e.g. because the woman was suicidally depressed. Others testified that D&Xs were only done when the fetus was dead (or hopelessly malformed) or when the woman's life was at risk or when the woman's long term health would be seriously damaged.

bullet Some testimony stated that during a D&X, the fetus is anesthetized and cannot feel pain; others said the opposite: that the anesthetic cannot pass the placental barrier and affect the fetus.

bullet Some authorities testified that fetuses cannot feel pain under any conditions; others testified that an embryo can feel pain at an early gestational age in the first trimester.

These people are experts. Some appear to be either not telling the truth, or unaware of reality. Further, it seems certain that many were consciously lying in order to promote their religious or political positions.

Pro-choice groups lobbied Congress to modify the bill so that it would allow the procedure in those rare cases where the woman needed a D&X in order to avoid very serious, permanent health problems. Senator Boxer (1995-DEC-7) proposed an amendment that would have allowed D&Xs "after viability where, in the medical judgment of the attending physician, the abortion is necessary to preserve the life of the woman or avert serious adverse health consequences to the woman." Ex-Surgeon General C Everett Koop said that this amendment was a "complete sham" It would "not outlaw a single one of the thousands of partial-birth abortions performed each year." 1 Dr. Koop appears to believe that all D&Xs are done to avoid serious adverse health consequences to the woman or to save her life.

This amendment was defeated.

The House bill was passed in late 1995 with votes 288 to 139 and 286 to 139, largely with Republican party support. The Senate passed the bill 54-44 on 1995-DEC-7. President Clinton wrote of having "studied and prayed about this issue...for many months," of finding the procedure "very disturbing," and of seeking "common ground...that respects the views of those -- including myself -- who object to this particular procedure." He indicated that if there were a provision in the bill like Senator Boxer had proposed, that he would have signed it into law. But he felt that too many women would be disabled or have their long term health seriously damaged if the bill were made law. Because it would not "allow women to protect themselves from serious threats to their health," he vetoed the bill on 1996-APR-10.

An attempt to overturn the presidential veto passed in the house but failed in the Senate. The vote was 57 to 41 in favor of passage, which was short of the 2/3 majority vote required to override a presidential veto. Some in the pro-life movement have consistently misrepresented the President's stand by incorrectly stating that the President wanted very late term D&Xs to be legal for simple "health" reasons. The term "health" had been defined by the courts very broadly, to include suicidal ideation, depression, etc. In fact, he wanted a clause to protect women from:

bullet permanent physical disability, or
bullet a devastating degeneration to their health.

In 1996-DEC, President Clinton again declared he would sign an amended ban on partial-birth abortions - one that would criminalize D&Xs except when they are required to prevent devastating, long-term health consequences to the woman. This is a much narrower criteria than "the Roe/Doe definition of health," specifies.

Many pro-life leaders continue to say that President Clinton is misrepresenting the facts. Some incorrectly state that he is using the all-inclusive Roe/Doe definition of health. 2 Some state that his version would stop almost no D&Xs. The latter statement appears to be an admission by pro-life groups that essentially all D&Xs are performed to avoid overwhelming, long-term damage to the woman's health or to save her life.

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1997 Federal bill:

A bill banning D&Xs was reintroduced into the House in early 1997. Its wording was essentially unchanged from the earlier version. D&Xs would be criminal acts at any stage of pregnancy, unless required to save the life of the woman. President Clinton again threatened to re-veto the legislation in its original form. The bill easily passed through the House in 1997-MAR-20 as HR 1122 with a vote of 295 to 136.

According to the Family Research Council's 1997-APR-3 newsletter by Gary Bauer, a consortium of pro-life agencies planned to promote the creation of a series of federal laws. They would:

bullet Ban all abortions in the second and third trimester. It is unclear why they would push for such a law. The Supreme Court has already ruled that such limitations are unconstitutional. A federal law would be nullified by a court injunction within hours of being signed into law. With the present makeup of the U.S. Supreme Court, the only way to constitutionally achieve a ban of 2nd and 3rd trimester abortions would be by a amendment to the U.S. Constitution.]

bullet Their next goal will be to ban:

bullet All abortions, presumably even those necessary to preserve the life of the woman;

bullet Emergency contraceptives (commonly called the "morning after pill"),

bullet Intra-uterine devices (IUDs), and

bullet Physician assisted suicide.

These laws would require enforced parenthood for all pregnant women. Terminally ill people experiencing unspeakable agony will be required to continue in pain until their bodies finally "give up the ghost."

In 1997-MAY, two D&X bills were introduced into the Senate.

bullet The Republican version was identical to that previously passed in the House.
bullet The Democratic version would criminalize any D&X performed after the fetus became viable unless required to avoid the likely death or grievous damage to the health of the woman.

A White House spokesperson stated that President Clinton would sign the latter bill if it were passed by Congress.

There was a large degree of consensus in the Senate and House on the conditions under which D&Xs should be outlawed. There was a general agreement that:

bullet D&Xs should be allowed if it is necessary to save the woman's life.

bullet D&Xs should be allowed if the fetus is dead.

bullet D&Xs should not be allowed for ordinary health reasons.

bullet D&Xs should not be allowed in cases of rape or incest.

bullet D&Xs should not be allowed in cases where the fetus is very severely malformed and would die within hours or days of birth. (e.g. the fetus may have developed with only a brain stem in place and without a functioning brain. If it were delivered normally, it would die in a few days, and never attain consciousness. During those days, no brain function would be present because there is no brain present in the skull. The "baby" would be like a very precisely constructed doll, with no thought processes, no awareness of self or the environment. But it looks like a baby, so many people feel that it should not be aborted.)

A major difference of opinion exist in situations where the life of the woman is not in jeopardy, but her health would be "grievously damaged" unless she was given a D&X procedure. These are situations in which the woman would be severely disabled or would suffer very serious long term health problems. The Republican bill would not allow a D&X in this case; the Democratic bill would permit the procedure if the woman and her physician decided that it was the least-worse option.

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This is continued in Part 2

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Quoted in Martin Sabo's (D-MN), Congressional Letter of 1996-NOV-5.
  2. "Virginia: Pro-life groups work for partial-birth abortion ban," at: http://www.champion.org/

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Copyright © 1996 to 2010 by Ontario Consultants on Religious Tolerance
Last updated: 2010-JUN-27

Author: B.A. Robinson
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