The Partial-Birth Fraud

The article was buried far down in section a of The New York Times on
Wednesday, February 26, 1997. But it hit supporters of abortion rights like a
punch to the gut. Ron Fitzsimmons, executive director of the National Coalition
of Abortion Providers, admitted that he lied when he'd said that partial-birth
abortions were rare and performed primarily to save the lives and preserve the
health of women with badly deformed fetuses. In other interviews, he said he had
parroted the pro-choice line and "lied through my teeth." The procedure, he said,
was far more common than the abortion-rights movement had acknowledged and was
used routinely by some doctors to abort the healthy fetuses of healthy women.

The Times article was yet another anti-abortion victory in the most
serious assault on legal abortion since the Supreme Court ruled in favor of the
rights of millions of Jane Roes back in 1973. The battle over the partial-birth
procedure dominated abortion politics from 1995 to June of 2000--when the
narrowly split Supreme Court, ruling 5-4 in Stenberg v. Carhart, threw out a
Nebraska law that attempted to make the procedure illegal. In the end, thanks to
the Court, the pro-choice side prevailed. But the five-year struggle divided the
abortion-rights movement by shifting the focus of the debate from the living
woman to the unborn fetus. It undermined the core argument that the pregnant
woman, along with her doctor--without government interference--should be the one
making the difficult decision to have a baby or not.

The furor frustrated abortion-rights activists because partial-birth abortion
was a phony issue. Only 1 percent of the more than one million abortions
performed each year in the United States take place in the late-second or third
trimester, when this procedure can be used. And virtually every abortion done at
the latest stages of a pregnancy takes place because the fetus suffers from a
fatal birth defect. Even the divided Supreme Court came to see a proposed ban on
partial-birth abortions as a constitutional infringement upon the medical rights
of American women.

Opponents of abortion "found a bad legal strategy but a terrific political
strategy," says a top legislative expert who is on the pro-choice side. "It was a
slam dunk politically." Conservatives have gained so much ground that even
Democrat Al Gore, a pro-choice candidate in last year's presidential election,
came out against the procedure during a campaign debate. His adversary, George W.
Bush, stated that he was opposed to abortions regardless of how they are done.

Fertile Imaginations

Abortion-rights activists concede that they made tactical errors; and the
opposition--led by the National Right to Life Committee (NRLC), an organization
dedicated to outlawing abortion--deftly exploited every misstep. The mastermind
behind the NRLC effort was the organization's chief lobbyist, Douglas Johnson, a
51-year-old suburban father of four who has spent most of his adult life trying
to stop abortions.

Johnson had some help. Since Roe v. Wade became the law of the land
in 1973, dramatic advances in neonatal care, obstetrics, and fertility treatments
have made subtle but significant changes in the public's understanding of
pregnancy and its stages. Back in 1973, a woman could not know with any certainty
that she was pregnant until months after conception. By the 1990s, a simple urine
test could confirm a pregnancy within hours. Doctors were making babies in test
tubes. Fertility drugs had become commonplace. Surgeons were beginning to do
exquisitely delicate surgery on 22-week-old fetuses in utero to minimize the
effects of spina bifida. Miracle babies--prematurely plucked from the womb but
able to survive with extraordinary luck and care--nudged at the moment of
viability (the point at which a baby can live outside the womb).

Meanwhile, parents were decorating their refrigerator doors with sonogram
pictures of their own much-wanted babies placidly swimming about in amniotic
fluid. The medical advances not only shed light on the mystery of life but also
reinforced the reality that an evolving fetus eventually turns into a squalling
infant. Technology gave the anti-abortion forces a potent tool.

Johnson says that the NRLC first became aware of the procedure
that anti-abortionists later named "partial-birth abortion" in the early 1990s,
when an anonymous party sent the organization a copy of a medical paper prepared
for the National Abortion Federation, a consortium of abortion providers, by Dr.
Martin Haskell of Cincinnati, Ohio. Haskell, a physician who ran two abortion
clinics, had written an eight-page "how to" on performing abortions after the
20th week of pregnancy. "A lot of the literature put out by abortionists on
late-term abortion techniques was written in opaque jargon for obvious reasons,"
said Johnson in an interview. "But this was not. This was very clear for the
layperson to understand."

Surgery is not for the squeamish. To the medically unsophisticated, Dr.
Haskell's procedure would seem horrific. Even a simple first-trimester abortion,
usually performed by vacuuming out the uterus to empty it of the fertilized egg,
involves blood and tissue. Second-trimester abortions are medically more
challenging because the fetus is bigger and more developed. Abortion opponents
compared Dr. Haskell's technique to infanticide.

Haskell's method is a variation of a procedure first developed by James
McMahon, a Los Angeles medical doctor who died in 1995. In his paper, Dr. Haskell
wrote that he performed second-trimester abortions by dilating the cervix of his
patient over several days and then moving the fetus to the birth-canal bottom
first, the position of a breach birth. (This detail is what later inspired the
anti-abortion forces to call the procedure "partial-birth" abortion.) He then
used surgical scissors to cut into the base of the fetal skull and, with a
catheter, suctioned out the contents. With the skull depressed, the fetus could
be easily removed from the patient.

In Haskell's view, this procedure was faster and cleaner than taking the fetus
out by pieces, another common method for second-trimester abortions. It was also
easier on the pregnant woman because it could be performed on an outpatient basis
under local anesthesia. Haskell called it dilation and extraction. Abortion
opponents called it murder.

The Haskell paper was circulated among anti-abortion activists for several
years as prima facie evidence of the barbarity of the abortionist. Eventually, it
came to the attention of Charles Canady, a Yale-educated Republican lawyer and
junior House member from Florida who would later play a key role in the
impeachment of President Bill Clinton. (Canady is now legal counsel to Florida
Governor Jeb Bush, the brother of President George W. Bush.)

When Republicans took control of the House of Representatives in 1995,
Canady--then in only his second term in Congress--became chairman of the House
Judiciary Committee's subcommittee on the Constitution. In the 1990s, the
Judiciary Committee tended to attract the ideologues from both political parties;
this subcommittee drew the truly hard-core, the legislators who dabbled in legal
concepts, democratic principles, and constitutional amendments. On June 14, 1995,
hoping to outlaw Haskell's surgical procedure, Canady filed a bill he called the
Partial-Birth Abortion Ban Act. His chief counsel, Kathryn Lehman, who is now a
top aide to House majority whip Tom DeLay, says they debated the name for months,
finally settling on "Partial-Birth" in an "aha" moment during a staff meeting.
"When we took back the majority in 1995," she adds, "this was something we wanted
to take a harder look at. It was just something most reasonable people,
regardless of their position on abortion, would believe should not happen."

Drawing on his prerogatives as chairman, Canady held a subcommittee hearing on
the bill the day after he filed it--unusually fast action for legislation. One
week later, Republican Senator Bob Smith from New Hampshire, who co-sponsored the
ban, put on a memorable show on the Senate floor. Backed by oversize drawings of
the procedure being performed on what appeared to be a fully formed infant, Smith
stabbed scissors into the head of a plastic baby doll. The grisly demonstration
would later haunt Smith politically. At the time, it stirred unease over the
procedure.

Law versus Politics

Canady's ban contained no exceptions to save the life or health of the
pregnant woman. ("My understanding is that it was never medically necessary,"
says Lehman.) So abortion-rights supporters found some solace in their belief
that the bill was at odds with Roe v. Wade and could never pass
constitutional muster.

Roe took a broad view of abortion. The Supreme Court ruling said that any
woman can have an abortion for any reason through the second trimester of her
pregnancy--that is, through the 24th week of pregnancy or until the fetus is
viable. In the third trimester, the 24th to 36th week, an abortion can be
performed only to save the life or preserve the health of the pregnant woman.

Actual practice reflects the constraints of this decision. According to the
most recent data as compiled by the Alan Guttmacher Institute in New York, 99
percent of abortions performed in the United States in 1997 took place before the
20th week of pregnancy; 88 percent were performed during the first 12 weeks. Some
women have abortions after amniocentesis shows fetal deformity. But clinicians
say that most second-trimester cases involve teenagers who try to hide or deny
their pregnancies, or very poor women who could not afford an abortion earlier
(because of the Hyde amendment--a rider sponsored by the conservative Republican
Congressman Henry Hyde of Illinois--Medicaid will not pay for abortions).

That same year, only 1 percent of all abortions took place after the 21st
week. Abortion-rights officials say that there are only three doctors in the
entire country--in Kansas, Colorado, and California--who perform third-trimester
abortions, and that virtually all of the women who undergo them have serious
health issues, such as a badly deformed fetus. The third-trimester abortions are
so specialized that physicians refer their patients to those three doctors. Women
who cannot get a referral carry the damaged fetus to term.

Johnson and others in the anti-abortion movement saw Haskell's
paper as a deadly dagger: irrefutable evidence to use in the court of public
opinion. They wanted to outlaw dilation and extraction in all cases, including
legal second-trimester abortions. But much of the rhetoric--particularly from the
U.S. Catholic Conference, the organization that represents the nation's bishops
and cardinals--focused on "late-term abortions." By assuming that late-term meant
third-trimester, the abortion-rights coalition walked into a trap.

From the beginning, the debate over partial-birth abortion was
complicated by an imprecise definition of terms and an absence of data on how
often, for what reason, and at what time in a pregnancy the procedure was
performed. "There is no such thing as partial-birth abortion," says Vicki
Saporta, executive director of the National Abortion Federation. "It wasn't a
procedure defined in any medical textbook. We didn't really know what exactly they
were referring to, and the language in the bill could encompass more than one
abortion procedure."

The American College of Obstetricians and Gynecologists did not issue its
statement of policy defining the procedure as "intact dilation and extraction"
until January 1997. In the sound-bite war, both sides talked past each other,
pushing their own point of view and addressing what they saw as the most
outrageous allegations of the opposition. Abortion-rights supporters zeroed in on
the "late-term" allegations. Knowing that third-trimester abortions were rare and
performed under extreme conditions, they set about quantifying the data.

State health departments and the U.S. Centers for Disease Control keep track
of the number of abortions but not the techniques used. So the National Abortion
Federation conducted a survey of its members who provide abortions in the second
or third trimester, "in an attempt to get a guesstimate in terms of numbers,"
says Saporta. According to a source familiar with the survey, the federation came
up with 400 to 600 "late-term" abortions (this estimate was based on interviews
with the few providers who used Haskell's procedure in the third trimester, the
rarest of abortions) and then added 20 as a hedge, in case they were aiming too
low. The entire abortion-rights coalition began to use this approximation, a
consensus guess. In a group letter to Congress in October 1995, pro-choice
activists wrote: "This surgical procedure is used only in rare cases, fewer than
500 per year. It is most often performed in the case of wanted pregnancies gone
tragically wrong, when a family learns late in pregnancy of severe fetal
anomalies or a medical condition that threatens the pregnant woman's life or
health. Restricting surgical options in these cases would only make tragic
situations worse."

Douglas Johnson spied his first opening. He knew this number was off, because
his side was counting both second- and third-trimester abortions. He and his
allies furiously lobbied reporters to do independent research and expose what he
called the "disinformation campaign" by abortion-rights supporters.

Finally, Johnson hit pay dirt in 1996 when a reporter for New Jersey's Bergen
Record
began calling abortion doctors in her state and asking about the
practice. The doctors confirmed that they routinely used the procedure to end
second-trimester pregnancies. The Washington Post followed with its own
story. Media Matters on PBS slammed the media for not doing their
homework on the issue. The spin from Johnson was devastatingly effective: The
abortion-rights supporters had been caught in a lie.

The ban sailed through Congress and landed on President Bill Clinton's desk
for the first time in the spring of 1996. Clinton vetoed it on April 10,
surrounded by five women who had undergone the procedure to end third-trimester
pregnancies. These women--a tableau of all-American, wholesome family
values--told heartbreaking stories of discovering late in planned pregnancies
that their babies had anomalies incompatible with life. Saporta had brought some
of them to Capitol Hill to meet with members of Congress. "What compelling state
interest is there in forcing a woman to carry a pregnancy to term when she knows
that baby will never survive?" asks Saporta. "We couldn't get through a
congressional briefing without crying. This was real." For the White House, it was
a particularly effective use of the presidential bully pulpit. In a single Oval
Office event, Clinton shifted the focus away from the fetus and back to the
pregnant woman.

Liberals Divided

"I remember the principal debate being the grounds on which we were going
to oppose [the ban] rather than the question of whether we were going to oppose,"
a former White House policy aide who worked on the issue says. This statement
echoes the first tactical debate within the abortion-rights coalition. Officials at
pro-choice organizations say there was fierce disagreement from the start over how
the argument should be framed. One side argued that it was a health issue. The
procedure could protect the future fertility of pregnant women whose fetuses were
deformed. In some cases, the fetus's skull size could be so great that the
pregnant woman would risk permanent physical harm if the pregnancy advanced to a
natural birth. Others, including Justice Department lawyers, argued that the ban
was blatantly unconstitutional: It outlawed a procedure performed in the second
trimester, when abortion is legal. Any ban would severely restrict a physician's
discretion in providing the best medical care to pregnant women.

The White House staff conducted its own survey and found that medical
opinion was divided. Some doctors were strongly opposed to the procedure. But
abortion is an extremely narrow specialty--and OB-GYN specialists agreed that
it was necessary in some cases. The specialists' view carried the day in the
White House, where staffers were also convinced that the ban would never pass in
Congress if it included a health exception, because of the passion of the
opposition. So they concluded it was safe for Clinton to say publicly--as he
later did--that he would sign a ban that included the health exception. "We
wanted to focus on the issue that was most powerful and would resonate with
people most deeply," says the White House adviser.

On Capitol Hill, Representative Barney Frank, the Massachusetts Democrat who
was Canady's foil on the subcommittee on the Constitution, had concluded that the
ban's staunchest opponents would never be satisfied with a health exception but
the public would. Frank is a liberal supporter of legal abortion but he is also a
practical politician. He says that the bill triggered a lot of political
problems. Advocates of the ban had done an effective job in shifting the focus to
the "personhood" of the fetus. Even abortion-rights supporters were uncomfortable
with the procedure. Roman Catholic members of Congress were getting intense
pressure from the Church to support the bill--some, like Democratic
Representative Carolyn McCarthy of New York, being lectured from the pulpit at
Sunday mass by their parish priests.

Frank decided that a ban could be acceptable so long as it contained an
exception for the health--both physical and mental--of the pregnant woman. In his
view, this was consistent with Roe. And anyway, women weren't having
abortions for casual reasons in the third trimester. The exception would also
provide cover for the Catholic members of the House. Some of Frank's colleagues
thanked him. But other abortion-rights supporters, including Democrat Nita Lowey
of New York, were furious. They argued that accepting any sort of ban threw the
movement onto defense and played into the hands of the NRLC forces.

Frank was having none of it. "We were giving away nothing," he says. "This is
a case of ideologues getting so caught up on the symbolism that they were acting
in a self-defeating way." Usually close allies in Congress, Frank and Lowey fought
bitterly over this issue. Abortion-rights activists asked Frank's sister, Ann
Lewis--who was the White House communications director under President Clinton
and is a seasoned veteran of feminist wars--to intervene with her brother. She
declined to do so.

Bill Clinton was the only thing standing between the ban and a
new law. He vetoed the bill twice--the second time in October 1997. Clinton's
political advisers felt that he'd paid no political price for the first veto
during his re-election campaign in 1996. Ironically, it was a prominent
supporter of the ban, Senator Bob Smith of New Hampshire, who had a close
re-election call. His demonstration with a baby doll on the Senate floor
infuriated and repulsed many moderate voters in his home state. When Congress
returned to work in 1997, Republican Senator Rick Santorum from Pennsylvania
replaced Smith as the lead Senate co-sponsor of the bill. Santorum is an ardent
opponent of abortion who wears an angel pin on his lapel as a tribute to the
seriously defective baby his wife carried to term (the infant died within hours
of birth).

Despite the 1996 election results, Frank says that the Republican
leadership on Capitol Hill remained convinced that abortion was one of the
hot-button issues they could use to hurt Clinton and rally their conservative
base. "They saw it as a wedge," he says. "They were less interested in
legislation than they were in embarrassing Clinton." Throughout 1998, when
Clinton was preoccupied with the prolonged investigation into his relationship
with former White House intern Monica Lewinsky, the GOP leaders held on to
his second veto message for a full nine months before scheduling a House vote.
With members facing re-election that fall, the House voted to override just
before the summer recess in late July. The Senate--by a margin of three
votes--failed to override the veto in September 1998, three months before the
House impeached Clinton.

In 1999 the ban began its third trip through the legislative process; it
passed the Senate in October and the House the following April. But by then, a
Nebraska law banning the procedure was working its way through the courts. That
June, in the Stenberg decision, the Supreme Court effectively ended the fight,
ruling the Nebraska law unconstitutional because it violated a fundamental tenet
of Roe v. Wade by failing to provide an exception to protect the pregnant
woman's health and by obstructing legal second-trimester abortions. Though the
federal bill is still rattling around, it is no longer a priority in light of
Stenberg.

Though legally vindicated, the abortion-rights movement was scarred by this
battle. "It pushed people's buttons," says Republican aide Kathryn Lehman. "We
knew even if we lost it, it was still a good fight to have." Ann Lewis concedes:
"It really did have an impact in terms of the number-one goal [of the
anti-abortion forces], which is to elevate this issue as one of a fetus as apart
from a woman."

Today, Ron Fitzsimmons says that his interview with the Times--and other
public comments, particularly the "I lied through my teeth" remark--"was one of
the stupidest things I have ever done .... It became a warped sound bite." But
after spending the past 20 years working to protect a woman's right to abortion,
he still feels he was right in stating the truth as he knew it.

"In my heart, having talked to many doctors, I knew that the procedure was
being used in the late second trimester, but I did not volunteer the information.
That bothered me greatly," he explains. "We should not be apologizing for this.
The apologetic tone stigmatizes abortion, creates guilt for women, and leads to
people killing our doctors."

The American public continues to support legal abortion. According to the Alan
Guttmacher Institute, 43 percent of American women will have at least one
abortion by age 45. Nearly half of all pregnancies in this country are
unintended, and half of those are ended through abortion. But polls also show
that the public is receptive to some curbs on the rights of minors to abortion
and wary of elective abortions in the latest stages of pregnancy.

Abortion opponents believe that the debate over partial-birth abortion helped
fan public ambivalence. The ban's biggest proponents concede that they have lost
this round, but they have not given up. "We wanted to get this bill into law,"
says Douglas Johnson of the National Right to Life Committee. "And we still hope
at some point to be able to do that."

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