Congressional "Findings" Key to Upholding Partial Birth Abortion Ban

     (Culture of Life Foundation) Based on testimony from the three trials challenging the ban on partial birth abortions (PBA), some legal scholars believe that at least one court could uphold the legislation. Congressional findings, attached to the legislation under consideration, conclude that partial birth abortion is never medically necessary. Proponents of the grisly procedure are out to disprove this claim by arguing that a ban would adversely affect the health of women.

     The crucial issue for the court is the question of women's health, and the abortion debate has been framed this way since the Supreme Court decided the Doe v. Bolton case, which was decided the same day as Roe v. Wade. Doe allows abortion to save the health of the mother, but the health exception is exceptionally broad such that any reason at all can be used. All subsequent legislative attempts to regulate abortion have had to deal with Doe's health exception. The first Congressional attempt to ban partial birth abortion did not consider the health exception and was subsequently struck down by the Supreme Court in Stenberg v. Carhart (2000).

     With the current ban, Congress addressed the issue explicitly by including expert findings which establish that partial birth abortion is never necessary for a mother's health. The American Medical Association, for instance, has said that partial birth abortion is "never medically indicated." Even abortionists testifying in the current trials say that partial birth abortion is never the only option to save a woman's health.

     One of the more interesting turns in the current trials has been the introduction of the question of fetal pain, though it is unclear how this topic will affect the outcome. Abortion proponents have traditionally insisted that the abortion debate remain squarely on the mother, often setting her at odds with her unborn child. Dr. Michael M. Uhlmann, a visiting professor of politics at Claremont Graduate University and a close observer of the abortion debate, says that "the fetal pain issue reintroduces the humanity of the unborn child much to the consternation of PBA proponents. All abortion cases are based on the supposition that the mother's interests are the only interests at stake." According to Uhlmann the "unborn child keeps intruding into the argument every time, and that's why the fetal pain issue becomes emotionally and factually relevant. Whether it becomes legally relevant is a separate matter."

     Uhlmann, former Special Assistant to President Reagan, said that the New York case has the greatest likelihood of upholding the legislation because the judge has not taken the testimonies of proponents of the procedure at face value. Judge Richard Conway Casey has been meticulous in questioning medical technology. According to Uhlmann "Casey has disturbed the calm discussion of the issue by insisting on plain language. This disturbs the clinical detachment of pro-PBA doctors. If the fetus is just a blob of valueless protoplasm why the detachment? This detachment is usually not present in the discussion of other medical procedures. In a significant and unintended way, the medical testimony is a massive confirmation of the humanity of the unborn."

Copyright---Culture of Life Foundation.

Source: Culture of Life Foundation
Publish Date: April 14, 2004