Statement on S. 1692, The So-Called "Partial-Birth Abortion Act of 1999"

S. 1692, THE SO-CALLED "PARTIAL-BIRTH ABORTION ACT OF 1999" IS UNCONSTITUTIONAL

October 15, 1999

The ACLU opposes S. 1692, the so-called "Partial-Birth Abortion Act of 1999," because it bans safe and common abortion procedures and thus threatens women's health and reproductive rights. Proponents of S. 1692, claim that it will prohibit only a single, "late-term" abortion procedure. In effect, however, S. 1692 is nothing but a ban on abortion. As medical experts have testified and courts across the country have found, bans worded nearly identically to S. 1692 could reach the safest and most common abortion procedures used throughout pregnancy. Such a ban puts women's health and lives at risk and violates the constitutional right to reproductive choice.

Congress has twice put politics before women's health in enacting "partial-birth abortion" bans. Only President Clinton's vetoes in 1996 and 1997 prevented these bills from becoming law. Each time, Congress tried to override the President's veto but fell a few votes short in the Senate. This month's scheduled vote in the Senate marks the 106th Congress's first step down this well-traveled but dangerous path.

Courts Have Overwhelmingly Struck Down Similar Bans in the States

Echoing events at the national level, anti-choice state legislators have also enacted bans on abortion procedures. Like the federal bill, most of the state measures are so vague and so broad that they cover a wide range of abortion methods.

The overwhelming majority of courts to have ruled on challenges to state so-called "partial-birth abortion" bans have declared the bans unconstitutional and enjoined their enforcement. In the last three years, medical providers have challenged state statutes that ban "partial-birth abortion" in twenty states. In eighteen of these states -- Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Illinois, Iowa, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, Rhode Island, West Virginia, and Wisconsin -- the bans are currently enjoined, in whole or in part.1 In a nineteenth, Alabama, the ban's effect is severely limited. In only one state, Virginia, has a court considered the constitutional challenges but nevertheless permitted enforcement of the statute pending further proceedings.2 The United States Supreme Court may hear one or more of these cases in the next year.

Several of the statutes so far enjoined -- including those in Idaho, Iowa, Kentucky, Nebraska, New Jersey, Rhode Island, and West Virginia -- are nearly identical to S. 1692.

Bans on Safe Abortion Procedures Harm Women's Health

S. 1692 threatens women's health. Here are some of the reasons why:

• S. 1692 Reaches an Array of Safe and Common Abortion Methods.

Although its sponsors characterize it as aimed at a single, "late," "gruesome" procedure, S. 1692 is not in fact limited to any stage of pregnancy, and it defines the conduct to be banned so broadly as to reach an array of safe and common methods of abortion. Doctors have testified repeatedly and courts across the country have found that similarly worded bans can apply to virtually all procedures used in the second trimester of pregnancy and even to some first-trimester abortions. In enjoining Iowa's ban, which is nearly identical to S. 1692, a federal court stated that the law could "encompass within its scope of prohibited conduct all of the abortion procedures" commonly used throughout pregnancy.

• Women Must Be Able to Rely on Their Doctor's Discretion to Use the Method Safest for Them.

Even if it were true, as the ban's proponents claim, that S. 1692 covers only a single abortion procedure, it would still endanger women's health. A threat to women's health always results when a safe medical procedure is removed from the physician's array of options, as there will always be some woman for whom the banned procedure would be the safest. Physicians must retain the discretion to decide what is best for their patients, and women must be able to count on their doctor's ability to use the abortion method most likely to protect their health. The government simply should not be in the business of banning any medical procedure that doctors consider safe and medically appropriate in certain circumstances.

• Government Intrusion in the Operating Room Jeopardizes Safe Medical Care.

Politicians should not regulate medicine in a way that undermines the safety of patients. Legislators are not trained to make medical decisions. They should leave decisions about the best surgical techniques for abortion in the hands of doctors, patients, and their families. S. 1692's uncertain scope and use of non-medical terminology simply highlights that politicians should not try to micro-manage the practice of medicine.

Bans on Safe Abortion Procedures Are Unconstitutional

S. 1692 bans safe abortion procedures and thus infringes constitutional protections for reproductive freedom. As federal and state courts around the country have recognized, similarly worded bans are unconstitutional for their wide-reaching prohibition on the safest, most common methods of abortion; for their failure to include adequate exceptions to protect a woman's life or health; and for their vagueness.

• An Unconstitutional "Undue Burden" on Abortion Rights

S. 1692 threatens the core right to choose abortion. The Supreme Court has held that the government may not prohibit a woman from making the ultimate decision, in accordance with her own conscience and moral imperatives, to have an abortion. Abortion restrictions are unconstitutional if they place an "undue burden" on a woman's right to choose abortion, that is, if they would place a substantial obstacle in the path of women seeking abortions.

S. 1692 poses not only a substantial obstacle, but an absolute barrier to many abortions that are now safe and legal. Physicians appearing in courts all over the country have testified that they read the language of similarly worded bans to reach most methods of abortion used throughout pregnancy. After reviewing such evidence, a court in Iowa held that the ban in that state, which is almost identical to S. 1692, was "unconstitutional as a matter of law."

• An Impermissible Endangerment of Women's Health and Safety

By prohibiting the safest and most common abortion methods, S. 1692 compromises women's health and drastically limits physicians' discretion to choose the most medically appropriate abortion method for their patients. A federal appellate court enjoined Wisconsin's ban, after concluding that it "take[s] chances of unknown magnitude with the health of pregnant women."

Moreover, S. 1692 unconstitutionally fails to provide adequate life and health exceptions. The government may never, even in the latest stages of pregnancy, prohibit abortions that are necessary to preserve women's lives or health. S. 1692 applies throughout pregnancy and yet contains no health exception whatsoever and a dangerously inadequate life exception. As a federal district court in Illinois held after reviewing the exceptions in a similar ban, the law would impermissibly require women "to remain pregnant even in the face of serious health concerns."

• An Unconstitutionally Vague Definition

The Due Process Clause prohibits laws so vague that persons of ordinary intelligence must guess at their meaning. S. 1692 fails to provide physicians adequate notice as to which abortion methods it prohibits. It would also subject physicians to arbitrary enforcement under unclear standards. In enjoining Rhode Island's ban, which is nearly identical to S. 1692, a federal court concluded that the law fails to "provide doctors with sufficient guidance to know what the Legislature made illegal."

• No Legitimate State Interest

The framework set forth in Planned Parenthood v. Casey (1992) for evaluating abortion laws under the federal Constitution requires that the government act to further legitimate ends. Yet S. 1692 serves neither of the governmental interests that Casey identified -- an interest in maternal health or in the potential life of the fetus. By outlawing abortion methods that may be the safest for many women, the bill in fact undermines women's health. Moreover, even if the ban targeted a single procedure, as its proponents claim, it would not further a state interest in potential life. Rather, it would channel women who had already made a decision to end their pregnancies away from one method -- and perhaps, for them, the safest method -- of doing so.

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Congress should learn what judges -- Republican and Democratic appointees alike -- already know: that S. 1692 is a dangerous threat to women's health and an unconstitutional attack on reproductive freedom.

Endnotes

1 The ACLU has litigated the cases in the following states: Alaska, Idaho, Illinois, Kentucky, Michigan, Montana, New Jersey, and Rhode Island.

2 In nine additional states -- Indiana, Kansas, Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, and Utah -- bans have been enacted but not challenged. And a thirtieth state, Ohio, passed a law in 1995 that would have banned "dilation and extraction." That law was struck down in federal court.