The Times article was yet another anti-abortion victory in the mostserious assault on legal abortion since the Supreme Court ruled in favor of therights of millions of Jane Roes back in 1973. The battle over the partial-birthprocedure dominated abortion politics from 1995 to June of 2000--when thenarrowly split Supreme Court, ruling 5-4 in Stenberg v. Carhart, threw out aNebraska law that attempted to make the procedure illegal. In the end, thanks tothe Court, the pro-choice side prevailed. But the five-year struggle divided theabortion-rights movement by shifting the focus of the debate from the livingwoman to the unborn fetus. It undermined the core argument that the pregnantwoman, along with her doctor--without government interference--should be the onemaking the difficult decision to have a baby or not.
The furor frustrated abortion-rights activists because partial-birth abortionwas a phony issue. Only 1 percent of the more than one million abortionsperformed each year in the United States take place in the late-second or thirdtrimester, when this procedure can be used. And virtually every abortion done atthe latest stages of a pregnancy takes place because the fetus suffers from afatal birth defect. Even the divided Supreme Court came to see a proposed ban onpartial-birth abortions as a constitutional infringement upon the medical rightsof American women.
Opponents of abortion "found a bad legal strategy but a terrific politicalstrategy," says a top legislative expert who is on the pro-choice side. "It was aslam dunk politically." Conservatives have gained so much ground that evenDemocrat 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 theopposition--led by the National Right to Life Committee (NRLC), an organizationdedicated to outlawing abortion--deftly exploited every misstep. The mastermindbehind the NRLC effort was the organization's chief lobbyist, Douglas Johnson, a51-year-old suburban father of four who has spent most of his adult life tryingto stop abortions.
Johnson had some help. Since Roe v. Wade became the law of the landin 1973, dramatic advances in neonatal care, obstetrics, and fertility treatmentshave made subtle but significant changes in the public's understanding ofpregnancy and its stages. Back in 1973, a woman could not know with any certaintythat she was pregnant until months after conception. By the 1990s, a simple urinetest could confirm a pregnancy within hours. Doctors were making babies in testtubes. Fertility drugs had become commonplace. Surgeons were beginning to doexquisitely delicate surgery on 22-week-old fetuses in utero to minimize theeffects of spina bifida. Miracle babies--prematurely plucked from the womb butable to survive with extraordinary luck and care--nudged at the moment ofviability (the point at which a baby can live outside the womb).
Meanwhile, parents were decorating their refrigerator doors with sonogrampictures of their own much-wanted babies placidly swimming about in amnioticfluid. The medical advances not only shed light on the mystery of life but alsoreinforced the reality that an evolving fetus eventually turns into a squallinginfant. Technology gave the anti-abortion forces a potent tool.
Johnson says that the NRLC first became aware of the procedurethat anti-abortionists later named "partial-birth abortion" in the early 1990s,when an anonymous party sent the organization a copy of a medical paper preparedfor the National Abortion Federation, a consortium of abortion providers, by Dr.Martin Haskell of Cincinnati, Ohio. Haskell, a physician who ran two abortionclinics, had written an eight-page "how to" on performing abortions after the20th week of pregnancy. "A lot of the literature put out by abortionists onlate-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 thelayperson 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 morechallenging because the fetus is bigger and more developed. Abortion opponentscompared Dr. Haskell's technique to infanticide.
Haskell's method is a variation of a procedure first developed by JamesMcMahon, a Los Angeles medical doctor who died in 1995. In his paper, Dr. Haskellwrote that he performed second-trimester abortions by dilating the cervix of hispatient over several days and then moving the fetus to the birth-canal bottomfirst, the position of a breach birth. (This detail is what later inspired theanti-abortion forces to call the procedure "partial-birth" abortion.) He thenused surgical scissors to cut into the base of the fetal skull and, with acatheter, suctioned out the contents. With the skull depressed, the fetus couldbe easily removed from the patient.
In Haskell's view, this procedure was faster and cleaner than taking the fetusout by pieces, another common method for second-trimester abortions. It was alsoeasier on the pregnant woman because it could be performed on an outpatient basisunder local anesthesia. Haskell called it dilation and extraction. Abortionopponents called it murder.
The Haskell paper was circulated among anti-abortion activists for severalyears as prima facie evidence of the barbarity of the abortionist. Eventually, itcame to the attention of Charles Canady, a Yale-educated Republican lawyer andjunior House member from Florida who would later play a key role in theimpeachment of President Bill Clinton. (Canady is now legal counsel to FloridaGovernor 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 HouseJudiciary Committee's subcommittee on the Constitution. In the 1990s, theJudiciary Committee tended to attract the ideologues from both political parties;this subcommittee drew the truly hard-core, the legislators who dabbled in legalconcepts, democratic principles, and constitutional amendments. On June 14, 1995,hoping to outlaw Haskell's surgical procedure, Canady filed a bill he called thePartial-Birth Abortion Ban Act. His chief counsel, Kathryn Lehman, who is now atop 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 wantedto 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 onthe bill the day after he filed it--unusually fast action for legislation. Oneweek later, Republican Senator Bob Smith from New Hampshire, who co-sponsored theban, put on a memorable show on the Senate floor. Backed by oversize drawings ofthe procedure being performed on what appeared to be a fully formed infant, Smithstabbed scissors into the head of a plastic baby doll. The grisly demonstrationwould later haunt Smith politically. At the time, it stirred unease over theprocedure.
Law versus Politics
Canady's ban contained no exceptions to save the life or health of thepregnant woman. ("My understanding is that it was never medically necessary,"says Lehman.) So abortion-rights supporters found some solace in their beliefthat the bill was at odds with Roe v. Wade and could never passconstitutional muster.
Roe took a broad view of abortion. The Supreme Court ruling said that anywoman can have an abortion for any reason through the second trimester of herpregnancy--that is, through the 24th week of pregnancy or until the fetus isviable. In the third trimester, the 24th to 36th week, an abortion can beperformed only to save the life or preserve the health of the pregnant woman.
Actual practice reflects the constraints of this decision. According to themost recent data as compiled by the Alan Guttmacher Institute in New York, 99percent of abortions performed in the United States in 1997 took place before the20th week of pregnancy; 88 percent were performed during the first 12 weeks. Somewomen have abortions after amniocentesis shows fetal deformity. But clinicianssay that most second-trimester cases involve teenagers who try to hide or denytheir pregnancies, or very poor women who could not afford an abortion earlier(because of the Hyde amendment--a rider sponsored by the conservative RepublicanCongressman Henry Hyde of Illinois--Medicaid will not pay for abortions).
That same year, only 1 percent of all abortions took place after the 21stweek. Abortion-rights officials say that there are only three doctors in theentire country--in Kansas, Colorado, and California--who perform third-trimesterabortions, and that virtually all of the women who undergo them have serioushealth issues, such as a badly deformed fetus. The third-trimester abortions areso specialized that physicians refer their patients to those three doctors. Womenwho cannot get a referral carry the damaged fetus to term.
Johnson and others in the anti-abortion movement saw Haskell'spaper as a deadly dagger: irrefutable evidence to use in the court of publicopinion. They wanted to outlaw dilation and extraction in all cases, includinglegal second-trimester abortions. But much of the rhetoric--particularly from theU.S. Catholic Conference, the organization that represents the nation's bishopsand cardinals--focused on "late-term abortions." By assuming that late-term meantthird-trimester, the abortion-rights coalition walked into a trap.
From the beginning, the debate over partial-birth abortion wascomplicated by an imprecise definition of terms and an absence of data on howoften, for what reason, and at what time in a pregnancy the procedure wasperformed. "There is no such thing as partial-birth abortion," says VickiSaporta, executive director of the National Abortion Federation. "It wasn't aprocedure defined in any medical textbook. We didn't really know what exactly theywere referring to, and the language in the bill could encompass more than oneabortion procedure."
The American College of Obstetricians and Gynecologists did not issue itsstatement 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 mostoutrageous allegations of the opposition. Abortion-rights supporters zeroed in onthe "late-term" allegations. Knowing that third-trimester abortions were rare andperformed under extreme conditions, they set about quantifying the data.
State health departments and the U.S. Centers for Disease Control keep trackof the number of abortions but not the techniques used. So the National AbortionFederation conducted a survey of its members who provide abortions in the secondor 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 cameup with 400 to 600 "late-term" abortions (this estimate was based on interviewswith the few providers who used Haskell's procedure in the third trimester, therarest of abortions) and then added 20 as a hedge, in case they were aiming toolow. The entire abortion-rights coalition began to use this approximation, aconsensus guess. In a group letter to Congress in October 1995, pro-choiceactivists wrote: "This surgical procedure is used only in rare cases, fewer than500 per year. It is most often performed in the case of wanted pregnancies gonetragically wrong, when a family learns late in pregnancy of severe fetalanomalies or a medical condition that threatens the pregnant woman's life orhealth. Restricting surgical options in these cases would only make tragicsituations worse."
Douglas Johnson spied his first opening. He knew this number was off, becausehis side was counting both second- and third-trimester abortions. He and hisallies furiously lobbied reporters to do independent research and expose what hecalled the "disinformation campaign" by abortion-rights supporters.
Finally, Johnson hit pay dirt in 1996 when a reporter for New Jersey's BergenRecord began calling abortion doctors in her state and asking about thepractice. The doctors confirmed that they routinely used the procedure to endsecond-trimester pregnancies. The Washington Post followed with its ownstory. Media Matters on PBS slammed the media for not doing theirhomework on the issue. The spin from Johnson was devastatingly effective: Theabortion-rights supporters had been caught in a lie.
The ban sailed through Congress and landed on President Bill Clinton's deskfor 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-trimesterpregnancies. These women--a tableau of all-American, wholesome familyvalues--told heartbreaking stories of discovering late in planned pregnanciesthat their babies had anomalies incompatible with life. Saporta had brought someof them to Capitol Hill to meet with members of Congress. "What compelling stateinterest is there in forcing a woman to carry a pregnancy to term when she knowsthat baby will never survive?" asks Saporta. "We couldn't get through acongressional briefing without crying. This was real." For the White House, it wasa particularly effective use of the presidential bully pulpit. In a single OvalOffice event, Clinton shifted the focus away from the fetus and back to thepregnant woman.
Liberals Divided
"I remember the principal debate being the grounds on which we were goingto 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 statementechoes the first tactical debate within the abortion-rights coalition. Officials atpro-choice organizations say there was fierce disagreement from the start over howthe argument should be framed. One side argued that it was a health issue. Theprocedure could protect the future fertility of pregnant women whose fetuses weredeformed. In some cases, the fetus's skull size could be so great that thepregnant woman would risk permanent physical harm if the pregnancy advanced to anatural birth. Others, including Justice Department lawyers, argued that the banwas blatantly unconstitutional: It outlawed a procedure performed in the secondtrimester, when abortion is legal. Any ban would severely restrict a physician'sdiscretion in providing the best medical care to pregnant women.
The White House staff conducted its own survey and found that medicalopinion was divided. Some doctors were strongly opposed to the procedure. Butabortion is an extremely narrow specialty--and OB-GYN specialists agreed thatit was necessary in some cases. The specialists' view carried the day in theWhite House, where staffers were also convinced that the ban would never pass inCongress if it included a health exception, because of the passion of theopposition. So they concluded it was safe for Clinton to say publicly--as helater did--that he would sign a ban that included the health exception. "Wewanted to focus on the issue that was most powerful and would resonate withpeople most deeply," says the White House adviser.
On Capitol Hill, Representative Barney Frank, the Massachusetts Democrat whowas Canady's foil on the subcommittee on the Constitution, had concluded that theban's staunchest opponents would never be satisfied with a health exception butthe public would. Frank is a liberal supporter of legal abortion but he is also apractical politician. He says that the bill triggered a lot of politicalproblems. Advocates of the ban had done an effective job in shifting the focus tothe "personhood" of the fetus. Even abortion-rights supporters were uncomfortablewith the procedure. Roman Catholic members of Congress were getting intensepressure from the Church to support the bill--some, like DemocraticRepresentative Carolyn McCarthy of New York, being lectured from the pulpit atSunday mass by their parish priests.
Frank decided that a ban could be acceptable so long as it contained anexception for the health--both physical and mental--of the pregnant woman. In hisview, this was consistent with Roe. And anyway, women weren't havingabortions for casual reasons in the third trimester. The exception would alsoprovide cover for the Catholic members of the House. Some of Frank's colleaguesthanked him. But other abortion-rights supporters, including Democrat Nita Loweyof New York, were furious. They argued that accepting any sort of ban threw themovement 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 isa case of ideologues getting so caught up on the symbolism that they were actingin a self-defeating way." Usually close allies in Congress, Frank and Lowey foughtbitterly over this issue. Abortion-rights activists asked Frank's sister, AnnLewis--who was the White House communications director under President Clintonand is a seasoned veteran of feminist wars--to intervene with her brother. Shedeclined to do so.
Bill Clinton was the only thing standing between the ban and anew law. He vetoed the bill twice--the second time in October 1997. Clinton'spolitical advisers felt that he'd paid no political price for the first vetoduring his re-election campaign in 1996. Ironically, it was a prominentsupporter of the ban, Senator Bob Smith of New Hampshire, who had a closere-election call. His demonstration with a baby doll on the Senate floorinfuriated and repulsed many moderate voters in his home state. When Congressreturned to work in 1997, Republican Senator Rick Santorum from Pennsylvaniareplaced Smith as the lead Senate co-sponsor of the bill. Santorum is an ardentopponent of abortion who wears an angel pin on his lapel as a tribute to theseriously defective baby his wife carried to term (the infant died within hoursof birth).
Despite the 1996 election results, Frank says that the Republicanleadership on Capitol Hill remained convinced that abortion was one of thehot-button issues they could use to hurt Clinton and rally their conservativebase. "They saw it as a wedge," he says. "They were less interested inlegislation than they were in embarrassing Clinton." Throughout 1998, whenClinton was preoccupied with the prolonged investigation into his relationshipwith former White House intern Monica Lewinsky, the GOP leaders held on tohis 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 justbefore the summer recess in late July. The Senate--by a margin of threevotes--failed to override the veto in September 1998, three months before theHouse impeached Clinton.
In 1999 the ban began its third trip through the legislative process; itpassed the Senate in October and the House the following April. But by then, aNebraska law banning the procedure was working its way through the courts. ThatJune, in the Stenberg decision, the Supreme Court effectively ended the fight,ruling the Nebraska law unconstitutional because it violated a fundamental tenetof Roe v. Wade by failing to provide an exception to protect the pregnantwoman's health and by obstructing legal second-trimester abortions. Though thefederal bill is still rattling around, it is no longer a priority in light ofStenberg.
Though legally vindicated, the abortion-rights movement was scarred by thisbattle. "It pushed people's buttons," says Republican aide Kathryn Lehman. "Weknew 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 theanti-abortion forces], which is to elevate this issue as one of a fetus as apartfrom a woman."
Today, Ron Fitzsimmons says that his interview with the Times--and otherpublic comments, particularly the "I lied through my teeth" remark--"was one ofthe stupidest things I have ever done .... It became a warped sound bite." Butafter 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 wasbeing 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 topeople killing our doctors."
The American public continues to support legal abortion. According to the AlanGuttmacher Institute, 43 percent of American women will have at least oneabortion by age 45. Nearly half of all pregnancies in this country areunintended, and half of those are ended through abortion. But polls also showthat the public is receptive to some curbs on the rights of minors to abortionand wary of elective abortions in the latest stages of pregnancy.
Abortion opponents believe that the debate over partial-birth abortion helpedfan public ambivalence. The ban's biggest proponents concede that they have lostthis 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 hopeat some point to be able to do that."
