WASHINGTON — FOR the first time, Congress is moving to ban a particular abortion technique.
Proponents of the bill say it would outlaw an especially heinous method, which they call a "partial-birth abortion," a procedure performed only in late abortions. Opponents see the legislation as nothing less than a step toward the banning of all abortions.
In a Congress stalked at every corner by the abortion issue - usually by reruns of old debates, such as the use of Medicaid money - this bill represents a new tack by anti-abortion forces. It also represents an unusual attempt to proscribe, at the federal level, a particular medical technique. Though drugs are regulated federally, procedures are not.
"This is the most serious [anti-abortion] bill in 200 years," says Kathryn Kolbert, a lawyer who has argued abortion-rights cases before the Supreme Court.
She calls the bill "blatantly unconstitutional," in light of the high court's series of abortion decisions, beginning with Roe v. Wade in 1973, which declared a broad constitutional right for women to have abortions.
David Smolin, a law professor at Samford University in Birmingham, Ala., believes that the law could stand up to a constitutional challenge. In written testimony to Congress, he said that because the baby is partially delivered alive most of the time in these abortions, they could be considered "constitutional persons." The Supreme Court, he wrote, "has never addressed the constitutional status of those who are 'partially born."'
Opponents say this federal effort is ironic given the Republican push for states' rights. Proponents counter that Roe v. Wade already federalized abortion. At least one state, Ohio, is considering its own bill to ban this type of abortion. Ms. Kolbert says the Supreme Court has struck down past state attempts to ban certain abortion procedures.
Rep. Charles Canady (R) of Florida, the bill's author, accuses his opponents of having "an overactive imagination."
"To think that this bill, which bans one abortion procedure, is going to lead to an end to abortion on demand in this country is a fantasy," Mr. Canady said last week after his House subcommittee approved the bill. "The Supreme Court has made it clear that abortion rights are protected."
The legislation would send a doctor to jail for up to two years if he or she is convicted of performing the procedure, called by some doctors a "D & X," which stands for dilatation and extraction. A woman who undergoes the procedure could sue her doctor for damages, as could the father of the baby and the baby's maternal grandparents if the mother is under 18. Some Republican supporters indicated they may amend the bill so that a woman who agrees to the procedure could not sue.
Abortion-rights supporters argue that the legislation is worded vaguely and could pose legal problems for doctors who perform any late abortions (those after 20 weeks of pregnancy), hysterectomies, or even a childbirth in which something goes wrong.
The legislation does allow the procedure to be used to save the life of the mother, but only when "no other form of abortion would suffice." Abortion-rights advocates say the way the bill is worded, the onus would be on the doctor to prove that he or she had no other choice but to do a D & X, a difficult case to defend.
Doctors who use the method, which is relatively new and rarely used (cases number in the hundreds or low thousands out of 1.5 million abortions performed annually in the US), argue that for some women a D & X is safer than other forms of late abortion or carrying the pregnancy to term. For some, they say, it could protect the ability to bear children in the future. Defenders of the procedure say it is used in cases where the mother's life or health is threatened or the baby is severely deformed.
Abortion-rights supporters call their opponents disingenuous: Abortion foes oppose all abortions, and to pick out one rare form is sensationalism aimed at inflaming public opinion.
"If I had my way, I'd place restrictions on all" forms of abortion, Canady responds. "But we're working in a legal environment that places severe restrictions on us," including, he says, a Congress that does not have close to the two-thirds majority necessary to pass a constitutional amendment banning abortion.