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Subcommittee Approves Ban on “Partial-Birth” Abortions

On July 11, the House Judiciary Subcommittee on the Constitution approved, 8-3, a measure (H.R. 4965) that would ban “partial-birth abortions.”

Advocating a ban on such abortions, Subcommittee Chair Steve Chabot (R-OH) stated that “partial-birth abortions” are “never necessary to preserve the health of a woman and pose serious risks to a woman’s health.” He also added that H.R. 4965 would give a “more precise definition” to address the U.S. Supreme Court’s concern that the definition of “partial-birth abortion” is too broad.

Disagreeing with Rep. Chabot, Rep. Jerrold Nadler (D-NY) said that H.R. 4965 would “fail every test the Supreme Court has laid down.”

Amendments to H.R. 4965 are expected to be offered during the full committee mark-up, including an amendment that would allow pregnant women and their doctors to determine whether carrying the baby to term would constitute a health risk.

The bill was approved two days after the subcommittee held a hearing on the legislation.

Subcommittee Hearing

Revisiting an issue Congress first debated during the 104th Congress, the House Judiciary Subcommittee on the Constitution held a July 9 hearing to discuss legislation (H.R. 4965) aimed at prohibiting “partial-birth abortion.” While the House approved similar bills in the 104th and 105th Congresses, the measures were twice vetoed by President Clinton. Bill supporters have argued that the legislation would prohibit a particular abortion procedure, while opponents have countered that because the measure broadly defines the procedure, all abortions could be prohibited under the legislation. In 2000, the U.S. Supreme Court struck down a Nebraska law banning “partial-birth abortion” because the law did not contain a health exception, as required under Roe v. Wade, and because the broadly worded definition of the procedure would place an undue burden on a woman’s ability to obtain a legal abortion.

As introduced, H.R. 4965 makes several changes to the definition of the procedure and adds a number of congressional findings aimed at establishing congressional intent in banning the procedure. Supporters argued that these changes would allay the Supreme Court’s concerns with previous bills.

Subcommittee Chair Chabot, the bill’s sponsor, opened the hearing noting that the measure would “ban this inhumane and unsafe procedure.” He added that the legislation differed from the Nebraska law in two aspects: the definition is more precise and the bill contains congressional findings showing that the procedure is never medically necessary to protect the health of the woman.

“It is time for Congress to end the national tragedy of partial-birth abortion,” he said.

Ranking Member Nadler denounced the bill, saying that it was “a bad combination of Members of Congress who want to play doctor and Members of Congress who want to play Supreme Court justices.”

Noting that it is an election year, Rep. Nadler said, “That means it is silly time in Congress….We should not play these kind of games.” In predicting that the legislation would not become law, he said, “The other body is too intelligent to take up this measure,” adding, “It is clearly unconstitutional.”

The subcommittee heard testimony from two obstetrician-gynecologists in support of the bill. Dr. Kathi Aultman of Florida said that the bill “clearly distinguishes Partial-Birth Abortion from other abortion procedures” and “will not endanger women’s health.” After describing several abortion procedures, Dr. Aultman said, “Obstetricians regularly handle medical complications that may threaten a woman’s health or life without having to resort to using Partial-Birth Abortion.”

Dr. Curtis Cook of Michigan agreed, saying, “Never in the ten years I have been providing perinatal care to women with complicated pregnancies have I ever experienced a clinical situation where the late-term abortion procedure being considered before this committee (partial-birth abortion) has ever been required or even considered as a clinically superior procedure to other well-known and readily available medical and surgical options.”

Two legal experts also testified before the subcommittee. Professor Robert Destro of The Catholic University of America testified in support of H.R. 4965, noting that the congressional findings of fact in H.R. 4965 “make it clear that the congressional purpose is not to place a ‘substantial obstacle in the path of a woman seeking an abortion’ of either a nonviable or a viable fetus, but rather to legislate to the full extent of its authority under the Constitution—and only that far.”

Simon Heller of the Center for Reproductive Law and Policy was the only witness to testify against the legislation. Mr. Heller argued on behalf of Dr. Carhart in Stenberg v. Carhart. Noting that while bill sponsors had altered the definition of “partial-birth abortion,” Mr. Heller added, “This alteration still does not result in a prohibition on a narrowly circumscribed category of abortion techniques….The bill perpetuates the problem of Nebraska’s law: it uses language which sweeps more broadly than the single technique in the ‘findings’ by the sponsors.”

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