The Federal Ban on Partial-Birth Abortion Became Law 13 Years Ago

On November 5, 2003, President George W. Bush signed the Partial-Birth Abortion Ban Act into law, prohibiting a type of late-term abortion that removes an intact fetus from the uterus. Partial-birth abortions involve delivering a living fetus until its head or torso is outside of the mother when it is then killed.

The law ultimately survived a challenge that went all the way to the U.S. Supreme Court, but debate over partial-birth abortions continues to this day. Republican presidential nominee Donald Trump used then-Sen. Hillary Clinton’s (D-NY) vote against the bill as a talking point in the final presidential debate and their differences will ensure that this issue continues to be a major sticking point in the abortion debate.

Why did it come up?

Partial-birth abortions (technical term: dilation and extraction or D&X) grew in the public consciousness after Dr. Martin Haskell wrote a paper and gave a presentation on them at a 1992 meeting of abortion providers. Haskell didn’t invent the procedure, but his work soon drew the ire of the pro-life movement.

The following year, the National RIght to Life Committee managed to obtain a copy of the paper and began a campaign to publicize the procedure in hopes of gaining enough public support to ban it altogether.

Pro-life advocates in Congress succeeded in passing partial-birth abortion bans in 1995 and 1997, but both times they were vetoed by President Bill Clinton. A state-level ban enacted in Nebraska became the subject of a 2000 Supreme Court case known as Stenburg v. Carhart, which struck down the law on a 5-4 decision because it didn’t provide an exception for the mother’s health. As a result, similar laws in 29 out of 31 states that had implemented bans were invalidated.

What did it do?

The first successful federal bill was introduced by then-Sen. Rick Santorum (R-PA) in February 2003 and established penalties for physicians that perform a partial-birth abortion, which could include a fine, up to two years imprisonment, or a combination of both. The bill didn’t specify a timeframe for when during a pregnancy a partial-birth abortion occurs, instead relying on a description of the procedure to set the legal boundaries. It also didn’t contain a medical exception to protect the mother’s health, or a proposed amendment that expressed support for Roe v. Wade.

The Senate and House each passed initial versions of the bill but because of various amendments in each chamber it had to go through conference committee to iron out the differences.

The committee’s report passed the House on a 281-142 vote on October 2, 2003, with the support of all but four Republicans and opposition from about two-thirds of Democrats and then-Rep. Bernie Sanders (I-VT). The Senate followed suit on October 21, passing the bill by a 64-34 margin with the support of then-Sen. Joe Biden (D-DE), despite opposition from then-Sen. Hillary Clinton (D-NY) and the soon-to-be top Democrat in the Senate, Chuck Schumer (NY). President George W. Bush then signed the bill into law on November 5, 2003.

What has its impact been?

Immediately after it became law, several legal challenges were filed to overturn the Partial-Birth Abortion Ban Act and three district courts declared it unconstitutional because it lacked an exception for the mother’s health, citing the Stenberg v. Carhart ruling. Those rulings were affirmed by appeals courts, and reached the U.S. Supreme Court in 2007.

On April 18, 2007 the Court ruled in a 5-4 decision in Gonzales v. Carhart that the Partial-Birth Abortion Ban Act didn’t violate the Constitution. The main difference between between the Stenberg and Gonzales rulings was ultimately the composition of the Court — Justice Sandra Day O’Connor had retired the previous year and found that the Nebraska ban was unconstitutional. President Bush replaced her with Justice Samuel Alito, who upheld the ban as constitutional.

Partial-birth abortions gained a prominent, if brief, role as an issue in the 2016 presidential election during the final debate. Democratic presidential nominee Hillary Clinton was questioned by the moderator about her vote against the ban on partial-birth abortions, and replied that she felt the "life and health of the mother are taken into account" and that “when I voted as a Senator, I did not think that was the case.”

Republican presidential nominee Donald Trump responded that "if you go with what Hillary is saying, in the ninth month you can take the baby and rip the baby out of the womb of the mother, just prior to the birth… Hillary can say that that’s okay, but that’s not okay with me."

— Eric Revell