Liberals Vow Court Fight Over Limit On Abortion

‘Partial Birth’ Ban Faces Challenge

By Ori Nir

Published June 13, 2003, issue of June 13, 2003.

WASHINGTON — Liberal groups are vowing a constitutional court challenge if President Bush follows through on his promise to sign the first federal law banning an abortion procedure.

The measure, a ban on a procedure widely known as “partial birth abortion,” passed the House of Representatives last week by a wide margin, after the Senate approved an almost identical bill in March. Bush, who is expected to receive a final version of the bill shortly, has promised to sign it. A broad coalition of liberal organizations and abortion-rights groups is set to challenge the ban in court as soon as it is signed.

The calls to overturn the bill have been endorsed by several major Jewish organizations, including some that initially appeared hesitant to sign on. Most mainstream Jewish groups have been reluctant to challenge the Bush administration on domestic issues in recent months, torn between the liberal views of constituents and the attachment of top leaders to Israeli security needs. The congressional victory of the anti-abortion forces appears to have stirred the groups to action, however.

“This is a huge deal. It is the first time the federal government is criminalizing an abortion procedure,” said Shelley Klein, director of American affairs and domestic policy at Hadassah, the women’s Zionist organization. “That is very serious, but we strongly believe it is unconstitutional.”

Activists on both sides of the abortion debate say the new legislation is the most significant achievement to date of the anti-abortion movement, which emerged as a nationwide political force in the wake of the Supreme Court’s Roe v. Wade decision in 1973 that legalized abortions.

The term “partial birth abortion,” coined by abortion opponents, is used to describe a procedure known in the medical community as “dilation and extraction.” It involves partially moving the fetus from the womb through the birth canal, feet first, and destroying it by piercing its brain. Then the fetus is delivered dead. Physicians’ groups say it is used only in rare cases when an abortion becomes necessary late in a pregnancy and other procedures are believed to be too risky for the mother.

Supporters of the ban call the procedure an inhuman practice that amounts to the killing of a child during the process of birth, and cite medical opinions questioning its necessity.

According to the most authoritative study available, it was used in about 2,000 of the 1.3 million abortions performed in the year 2000, or about 0.1% of the total. However, the chief sponsor of the House bill, Rep. Steve Chabot, a Republican from Ohio, contends that as many as 5,000 such abortions are performed annually.

Abortion-rights activists say the ban is just one piece of a concerted effort by anti-abortion groups to prepare the ground for overturning Roe v. Wade. The strategy of such groups, according to Ellen Witman, co-director of Washington operations for the National Council of Jewish Women, is to make as many gains as possible through legislation while “packing the [lower] courts with anti-abortion judges” — in anticipation of a change in the makeup of the Supreme Court.

Court watchers are speculating that one or two Supreme Court seats might open up in the coming months. Chief Justice William Rehnquist, 78, and Associate Justice Sandra Day O’Connor, 72, are widely believed to be contemplating retirement in order to ensure that their replacements are named by a Republican president. Conservative activists are preparing to fend off any liberal attempts to derail anti-abortion Bush nominees.

O’Connor’s retirement is being watched particularly closely since she has frequently provided the swing vote to uphold abortion rights and other liberal priorities.

While waiting for a chance to overturn Roe, abortion foes are attempting to identify so-called “fetus rights” issues that can win public sympathy and be attacked through legislation, including partial birth abortion. A Gallup poll in January found that 70% of the public favors a ban on the procedure. Thirty-one states have outlawed the procedure since 1995.

Another piece of legislation being pushed by anti-abortion groups is the Unborn Victims of Violence Act, which the Senate is expected to pass later this month. The bill, which has already cleared the House, recognizes a fetus as a crime-victim in cases where a fetus is injured or killed as a result of a federal crime. The House has renamed it “Laci and Conner’s Law,” after murder victim Laci Peterson and her unborn son. A Newsweek poll taken earlier this year found that 84% of Americans support pressing homicide charges when a fetus is killed in the womb during a physical assault.

Statistics on Jewish opinion specifically regarding partial birth abortion were not available. However, repeated polls during the past 15 years have found a huge gap between Jews and non-Jews on other abortion-related issues, with Jews overwhelmingly in favor of unrestricted abortion rights while non-Jews are more divided.

A 2000 survey sponsored by Center for Jewish Community Studies, a conservative Philadelphia think tank, found that 65% of Jews “strongly agreed” with the idea that abortion should be readily available and 4% “strongly disagreed.” Among non-Jews, only 30% “strongly agreed” while 26% “strongly disagreed.”

Overall, including those who “somewhat” agreed or disagreed, Jews endorsed abortion rights 88% to 9%, while non-Jews supported them by a narrower 58% to 36% margin.

Jewish groups lined up solidly against a more broadly-worded ban on partial birth abortion that was adopted in Nebraska in 1997. The Supreme Court overturned the Nebraska law in a 5-to-4 decision in 2000.

This time around, leaders of two Jewish women’s organizations, Hadassah and the National Council of Jewish Women, responded promptly to the congressional vote with declarations that their groups will definitely join the legal fight. Officials at the American Jewish Committee and the American Jewish Congress did not issue public statements, but said in response to inquiries that they were likely to take part. The Religious Action Center of Reform Judaism publicly condemned the passage of the bill in the House, but it has not yet indicated if it will join in any legal action.

The Anti-Defamation League, which filed a court brief against the Nebraska ban, said it has not adopted an official position on the congressional measure.

Gloria Feldt, president of the Planned Parenthood Federation of America, said the organization would seek an injunction to stop its implementation.

Congress passed a ban on the procedure twice before, in 1996 and 1997, but each time President Clinton vetoed the legislation.

The bill that passed the House last week by a margin of 282 to 139 describes the practice as “an abhorrent procedure that offends human dignity.” The only exception contained in the bill is for cases where there is a threat to the mother’s life.

According to a briefing paper put together by the American College of Obstetricians and Gynecologists, failure to use the procedure in cases involving certain infections after the first trimester could threaten the mother’s life. In general, the college stated, other procedures may “involve a longer period of time or more discomfort to the woman.”

The college acknowledged that the procedure is opposed by some doctors who perform late-term abortions, but added: “It is precisely because there is no basis for legislating one specific technique for mid-trimester abortion, and because there is a need for flexibility in handling the unexpected situations, that [the college] opposes an absolute ban on a technique that in the judgment of a physician and a patient may be most appropriate.”



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