The impact, and limits, of abortion bill
Passed by the Senate, a 'partial-birth' ban may satisfy conservatives - yet still be struck down.
WASHINGTON — For the first time since Roe v. Wade legalized abortion nationwide in 1973, the president of the United States is on the verge of signing legislation outlawing a type of abortion.
The chances that the law banning so-called "partial birth abortions," passed by the Senate on Tuesday, will go into effect anytime soon are slim to none. Three years ago, the Supreme Court pronounced a nearly identical Nebraska law unconstitutional. Three heavy-hitters in the abortion-rights movement are poised with legal action to prevent enactment of the new legislation.
But the symbolism of the moment is large. President Bush is expected to sign the bill with fanfare, perhaps in the Rose Garden, a bow to his religious conservative supporters who feel they haven't gotten much during his three years in office.
"They know they still can't pass the constitutional hurdle, but certainly the administration and the Republicans have to show some movement on social issues," says an aide to a Republican senator who supported the bill. "It will also lead to a focus on the importance of the courts, which will be important to mobilizing the [Republican] base next year" in the elections.
When the Supreme Court overturned the Nebraska law, the vote was 5-4. The departure from the court of one justice from that majority could put a new cast on the court's approach to abortion rights, particularly if President Bush is reelected.
Experts say that the legal challenge to the new law - which would start at the district court level - could wind up in the Supreme Court in as many as four years, plenty of time for a new justice or two to take the bench.
At issue is a procedure that the law describes as an "overt act" to "kill the partially delivered living fetus." The Supreme Court faulted the Nebraska law for being vague and for not including an exception for women whose health is threatened if they are barred from undergoing this procedure.
Opponents of abortion believe a health exception is a loophole that could render a ban meaningless. Abortion-rights advocates believe the broad language of the Nebraska law - and the bill Congress just passed - would ban more than just certain rare, late-term abortions, and instead would have a chilling effect on doctors and pregnant women in crisis pregnancies. Doctors who violate the ban could face up to two years in prison.
Abortion foes say the legislation meets the need for specificity that the Supreme Court requires, and that it addresses the health issue by presenting evidence that the procedure is never necessary for health reasons. But most legal experts, even some who oppose abortion rights, believe the law Congress just passed won't pass constitutional muster.
"It is absolutely 100 percent certain that this will be held unconstitutional, because of its lack of a health exception," says David Garrow, an expert on the history of reproductive rights at Emory University Law School. "Nine pages of verbiage about congressional findings isn't going to change that."
Viewed through the political lens, Bush's interest in signing the bill goes beyond satisfying his conservative base. The proposed ban on "partial birth abortion" - a term coined by abortion foes, but not a medical term - enjoys the support of 70 percent of the public. As with laws requiring waiting periods and parental notification for minors, the large "middle" in the abortion debate has no problem restricting abortion rights, even if it does not support an outright ban.
"This has perhaps been the most successful pro-life issue in the past decade, in terms of both mobilization of the rank and file and PR," says the Republican staffer. "It's one of those issues that rallies the base but doesn't alienate the center."
The victory for conservatives is all the sweeter, because the ban had been vetoed twice by President Clinton, over the lack of health exception. Now the Republican- controlled Congress can move on to other initiatives on its antiabortion agenda.
Next up is likely to be the Unborn Victims of Violence Act, which recognizes a fetus as a crime victim if he or she is injured or killed in the course of a federal crime. After that, sources say, will come the Abortion Nondiscrimination Act, which would prohibit state and local governments from discriminating against health care providers that won't perform abortions.
And after that, Congress will take up the Child Custody Protection Act, which would ban the transportation of a minor seeking an abortion across state lines.
But for years, "partial birth abortion" has been the brass ring, and both sides are gearing up for the shift to the courtroom.
"Congress is now inviting the Supreme Court to reexamine [its] extreme and inhumane decision" of 2000, says Douglas Johnson, legislative director of the National Right to Life Committee.
The Center for Reproductive Rights, one of the abortion-rights groups that will file suit to keep the ban from taking effect, was equally adamant.
"The Supreme Court has already said that a law like this would have 'tragic health consequences,'" said Nancy Northup, president of the center, in a statement. "We will do everything in our power to prevent this dangerous ban from taking effect."