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Pro-Abortion Senators Stall Partial-Birth Abortion Ban
by Jill Boughton
LifeNews.com Staff Writer
July 21, 2003
Washington, DC (LifeNews.com) -- Both houses of Congress have finally passed legislation banning partial-birth abortion, a procedure so gruesome and unnecessary it is opposed by a large majority of Americans, even those who tend to value "choice" above life.
Unlike his predecessor, who swiftly vetoed it each time it reached his desk, President Bush has stated that passing this legislation is a priority for him. Why then is the bill still languishing, nearly three years after Republicans took control of the White House and Capitol Hill?
The simple answer is that a small number of pro-abortion Senators have pleased their well-heeled constituency by employing one delaying tactic after another.
In the Senate, pro-abortion Sen. Tom Harkin (D-IA) tacked on an amendment to the bill that put the Senate on record as supporting Roe vs. Wade. Because there was no such language in the House version, it has to go to a conference committee.
That committee should succeed in striking the pro-abortion amendment -- as soon as it is able to get to work.
Near the end of June, Senate Majority Leader Bill Frist put forth a motion to appoint Senators to the conference committee; Senate Democrats objected, taking two weeks to specify their objection. Finally Senators Harkin and Boxer (D-CA) put forward a motion to "instruct" conferees to keep his amendment. Boxer admitted in an interview with Roll Call magazine, "If we keep Roe in, we might be able to stop this bill." However, a majority vote on such an "instruction" is not binding on the conferees.
"The current bottleneck is with the appointment of conferees, but the whole business shows that Senator Daschle is writing an entire new book on obstructionist tactics," according to Michael Schwartz, legislative director for Concerned Women for America.
When the conference committee is appointed, pro-life conferees expect to be able to restore a "clean" ban, without the Harkin amendment. However, the conference report will have to be approved by both the Senate and the House, providing yet another opportunity for debate and delay. A spokesman for Harkin said he may end up filibustering the conference report.
Since 65 Senators are already on record in favor of the bill, the outcome is assured, but it will likely have to wait until representatives return from their summer recess, which begins at the end of this week.
President Bush will sign the ban once it reaches his desk, but three pro-abortion groups are coordinating efforts to challenge the it in federal courts.
"Lawyers from the three groups could file lawsuits challenging the measure 'within hours' of the law's enactment, said Priscilla Smith, who will be the lead attorney for the Center for Reproductive Rights' challenge."
Quite likely, one or more of these federal judges will prevent enforcement of the law until the issue is resolved. Litigation is likely to be lengthy, and the losing side will certainly appeal all the way to the Supreme Court.
Since the Supreme Court already ruled 5-4 against Nebraska's ban on partial-birth abortions, does this legislation stand a chance of passing judicial muster? We can always hope for a change in the composition of the Supreme Court in the interim, but it's easy to be pessimistic, observing the way Senator Daschle has used filibusters and other tactics to prevent the appointment of judges to lower courts who have the slightest suspicion of being pro-life.
However, this bill is different from Nebraska's in three ways:
It more carefully and clearly defines the exact procedure that is prohibited, making it more difficult for opponents to argue that Congress is attempting to ban a broad right guaranteed by the Constitution (or a retrospective 1973 reading of the Constitution).
It contains a lengthy section of "findings" refuting specious claims the Supreme Court put forth in its 2000 decision. These findings showing conclusively that partial-birth abortion is never, under any conceivable circumstances, necessary to protect the health of the mother.
Because it was passed by the U.S. Congress rather than a state legislature, it is subject to a higher standard of review. This means those who would reject the law have a greater burden of proof than they had in overturning a state law.
In the meantime, pro-lifers in Virginia, Michigan and Missouri are trying to craft laws that identify partial-birth abortion as illegal infanticide. It remains to be seen whether the courts will uphold such laws.