June 9, 2004
In the ongoing abortion battles, score one for the rights of women.
A recent federal decision took aim at the Partial Birth Abortion Ban Act signed by President Bush last November. In the process, U.S. District Judge Phyllis Hamilton reprimanded Congress for playing loose with facts and fast with rhetoric.
One of the many refreshing aspects of Hamilton's ruling is that she refused to legitimize the term "partial-birth abortion."
"As many of the physicians testified before this court, the term 'partial-birth abortion' has little if any medical significance in and of itself," the judge wrote in the 117-page decision released June 1.
Hamilton found the federal ban unconstitutional on grounds that it was dangerously vague, that it placed an undue burden on women's access to abortion and that it did not provide exceptions for safeguarding a woman's health.
The Partial Birth Abortion Ban Act was the first federal legislation to criminalize abortion and could have affected abortions as early as 13 weeks. Two other challenges to the law are winding through the federal courts in a controversy that may ultimately be resolved by the U.S. Supreme Court.
Legally, supporters of reproductive rights for women have a strong case. The Supreme Court struck down a Nebraska ban on "partial-birth abortion" in 2000. The decision, however, was a narrow 5-4 ruling. Abortion opponents hope that by the time the current debate reaches the high court, Bush will have been re-elected and will have appointed a conservative justice to tip the balance on the court.
For more than 30 years, abortion opponents have dismissed popular support for a woman's right to choose and instead have fought their war on the turf of emotionally powerful soundbites.
Nowhere is this clearer than in debates around so-called "partial-birth abortion" -- a term that doesn't exist medically because there is no such medical procedure.
The anti-abortion movement was eminently clever when it chose the term "partial-birth abortion." In three brief words it equated second-trimester abortion with killing little babies. The phrase also has an ominous subtext: If women's rights advocates support the killing of innocent infants, how can you trust anything they say?
In a sign of how the right wing is winning the war of rhetoric, the media almost exclusively uses the term "partial-birth abortion" to refer to the little-used but sometimes medically necessary procedure known as intact dilatation and extraction (D&X). Even some supporters of women's reproductive rights carelessly use the term.
Medical groups from the American Medical Association to the American College of Obstetricians and Gynecologists (ACOG) reject the term "partial-birth abortion." The ACOG, founded in 1951 and representing more than 46,000 providers of healthcare to women, unequivocally calls the ban "inappropriate, ill advised and dangerous."
The "partial birth" rhetoric obscures the fact that the D&X procedure is performed only when the fetus is not yet viable and therefore unable to live outside the womb. Yet in its legislation, Congress likened the procedure to "infanticide." It went on to argue that it is "the killing of a child that is in the process, in fact mere inches away from, becoming a 'person.'"
Judge Hamilton had little patience with such inflammatory distortion. She chastised Congress for its "grossly misleading and inaccurate language," noting that it "appears to have been intentional. Congress was aware that the act, as written, applied to pre-viable fetuses."
The term "partial-birth abortion" is nothing more than a political invention designed to equate abortion with murder. It attempts to pave the way for a reversal of the woman's right to reproductive decision-making.
The judge wisely set the rhetorical record straight.
Barbara Miner is a Milwaukee-based journalist who frequently writes on women's issues. She can be reached at pmproj@progressive.org.