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On Law: Partial-birth hypocrisy

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent

WASHINGTON, March 14 (UPI) -- The federal ban on "partial-birth" abortion now wending its way through Congress has no chance -- repeat, no chance -- of surviving a court challenge, and both its supporters and opponents know it.

In fact, the proposed ban is nothing more than an exercise in monumental hypocrisy, even by Washington standards.

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It's also a cruel deception of those who believe that abortion is murder, and who give their votes and their money to those political reptiles who pretend they can do something about it without a fundamental change at the Supreme Court.

The few Democrats who privately believe that women have a right to abortion, but who voted for this ban in the full knowledge that the courts will strike it down, are much worse than the Republican majority guiding the legislation.

At least many if not all of the Republicans believe that enforcement of the ban would be a good thing.

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Their hypocrisy is singular -- pretending that there is a snowball's chance in hell that the ban will be enforced.

Democrats whose hearts lean the other way but vote for the ban to get political cover with the folks back home are doubly hypocritical. They betray both their beliefs and the voters.

Two Democratic presidential candidates, Sen. John Kerry of Massachusetts and Sen. John Edwards of North Carolina, screwed up their courage and didn't vote on the ban at all.

The Senate passed its version Thursday. Sixteen Democrats joined 48 Republicans to form the majority. Interestingly enough, the Senate legislation includes a resolution supporting Roe vs. Wade, the 1973 Supreme Court decision that first recognized a woman's right to an abortion.

The bill's sponsor, Sen. Rick Santorum, R-Pa., has promised that section will be removed shortly. The House is expected to approve the legislation within a month, and President George W. Bush has promised he will sign it.

The proposed law attempts to ban abortion procedures in which the fetus' head or any part of its trunk is outside the womb before it is destroyed -- before the incipient human being is killed. The ban applies to all abortions, not just "late term" procedures.

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Opponents of the ban say it is a very thinly disguised attempt to prohibit all abortions, or at least an attempt at so confusing the issue that doctors become too intimidated to carry out any abortion.

Under the bill's terms, a doctor who performs a "partial-birth" abortion could face up to two years in prison. The woman could not be prosecuted.

The ban makes an exception for the "life of the mother," but no exception for the "health of the mother." Ban supporters say, perhaps correctly, that many doctors would always be able to justify any abortion procedure, even elective ones, by saying it was for the mental or physical "health" of the mother.

Of course, the Supreme Court struck down just such a ban, one enacted by the Nebraska Legislature, in 2000's Stenberg vs. Carhart.

Justice Sandra Day O'Connor, a moderate conservative, joined the high court's four liberals in forming a 5-4 majority.

O'Connor signed on to the majority opinion, but also wrote a concurring opinion in which she offered a roadmap to make such a ban constitutional.

The majority in Stenberg tried to define the differences among the types of abortion.

During a pregnancy's second trimester -- 12 to 24 weeks -- the most common abortion procedure is "dilation and evacuation," or D&E. The cervix is dilated, and at least some fetal tissue is removed using "non-vacuum" instruments. After the 15th week, a doctor usually has to dismember the fetus before it is evacuated from the womb.

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Not a very pleasant subject, but facts should be faced.

Even with D&E, the most common form of abortion, the doctor may have to pull a portion of the fetus through the cervix into the birth canal in order to safeguard the reproductive health of the mother.

After 16 weeks, but still within the second trimester -- Roe vs. Wade says the states cannot ban abortion in the first and second trimesters -- the safest procedure is an "intact D&E."

Let's speak plainly. The fetus is pulled from the womb, alive or dead, and dismembered in the birth canal.

The most common method associated with what the Senate calls "partial-birth" abortion is "dilation and extraction," or D&X. The fetus is pulled, sometimes partially, from the womb. It must come out feet-first before it is destroyed.

The problem, the majority said in Stenberg, was that D&X was often much safer for the mother than D&E.

That was one constitutional problem, according to the majority.

The biggest constitutional problem with the Nebraska law, one that remains in the latest federal version of the ban, was that it made no provision for the "health of the mother."

Without it, any ban is unconstitutional, the majority said.

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Supposedly, Santorum and others have constructed the current federal ban in hopes of winning O'Connor's vote in any new court challenge.

How open is O'Connor to switching sides and voting the ban constitutional? Here's the justices's thinking in her own words, in her 2000 concurrent opinion:

"Nebraska's statute cannot be reconciled with our decision in Planned Parenthood ... vs. Casey," the 1992 Supreme Court decision affirming Roe. O'Connor voted with the prevailing bloc in Casey.

"The Nebraska statute is inconsistent with Casey because it lacks an exception for those instances when the banned procedure is necessary to preserve the health of the mother," O'Connor said in 2000.

"... As we held in Casey, prior to viability 'the woman has a right to choose to terminate her pregnancy.' ... After the fetus has become viable, states may substantially regulate and even proscribe abortion, but any such regulation or proscription must contain an exception for instances 'where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother' ...

"Second, Nebraska's statute is unconstitutional on the alternative and independent ground that it imposes an undue burden on a woman's right to choose to terminate her pregnancy before viability," O'Connor said. "Nebraska's ban covers not just the dilation and extraction (D&X) procedure, but also the dilation and evacuation (D&E) procedure, 'the most commonly used method for performing pre-viability second trimester abortions.'"

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There is a way to make "partial-birth" abortion bans constitutional, O'Connor said.

"A ban on partial-birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view."

There it is. O'Connor's roadmap. The Senate deliberately chose not to follow it. The current proposal leaves the description of the banned procedure deliberately broad, and leaves out an exception for the "health of the mother."

Why?

Senators are not idiots. They or their staffs are perfectly capable of reading a court opinion. Instead of following that opinion, the Republican majority is going through the motions in this farce simply to hold Democratic feet to the political fire.

Not one of them, not even Santorum, can believe this ban will stick.

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Michael Kirkland is UPI's senior legal affairs correspondent. He has covered the Supreme Court, and other parts of the legal community, with varying degrees of enthusiasm since 1993.

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