Partially accurate

In the debate over partial-birth abortions,
pro- and anti-choicers tell
only part of the story

by Jody Ericson

When the House overwhelmingly approved a ban on partial-birth abortions last week, Maria Parker, a lobbyist for the Catholic Diocese of Providence's Respect Life program, hailed the decision as an informed and responsible one. "I find the more educated people are about this issue, the more horrified they become," she told the Providence Visitor, the diocese's weekly newspaper.

But in reality, the information on partial-birth peddled by both pro- and anti-choicers is so fragmented and biased, most Rhode Islanders, including the General Assembly, are clueless as to what the debate is really about.

For all the political fanfare over the bill, a ban would likely have no practical effect in Rhode Island. For one reason, no one knows whether partial-births are even performed here because hospitals and clinics don't track abortions by method.

Dr. Pablo Rodriguez, medical director at Planned Parenthood of Rhode Island, says a partial-birth is used most often for late second-trimester abortions, of which about a dozen (.2 percent of the total) are performed in this state every year. But the procedure can also be used as early as 12 weeks into a pregnancy.

What's more, if the bill is passed (it is presently stalled in the Senate Health, Education, and Welfare Committee), doctors would simply resort to another procedure, one perhaps more dangerous to the mother, and the ban would be virtually unenforceable. Even some anti-choice groups say the womb is an impossible place to patrol.

"You're never going to be able to prosecute someone for performing one of these. Is the woman or the doctor going to say anything? I don't think so. The woman doesn't care what the procedure is, as long as it's done," says Mark Crutcher.

A staunch anti-choicer, Crutcher is president of Life Dynamics, a group in a suburb of Dallas, Texas, that helps lawyers file malpractice suits against abortion clinics by providing expert testimony and research. Despite his work, even Crutcher is disturbed by the slew of proposed bans now up for consideration in states across the nation. "The whole issue is a scam, " he says. "This is just a way for Right to Life to raise funds and rally the troops."

Indeed, before a ban even reached the point of enforcement in Rhode Island or anywhere else, it would face an uphill battle constitutionally, as other states that have passed laws on this are discovering.

But rather than deal with these specific issues, both pro- and anti-choicers in Rhode Island claim the moral high ground. They are apparently above fully explaining their side of the story.

The message from the pro-choice side is that the proposed ban is meant only to conjure up gruesome words and images and to portray doctors as baby killers. (The bill would make performing the procedure a felony.) On the anti-choice side, partial-birth is a gruesome method of abortion, and they have the pictures to prove it.

As for other types of abortion that some might consider equally brutal (like dismembering a fetus in the womb and removing it in pieces), both camps are reluctant to comment. That would mean acknowledging that the debate is much larger than one procedure, which could hurt both causes by moving into the grayer area of when and why late-term abortions in general are performed.

Planned Parenthood of Rhode Island, for instance, insists that partial-births are used only on women "with catastrophic pregnancies," meaning the fetus is severely deformed or the mother's health is at stake. But in making this assertion, agency officials sidestep what has become known as the "Ron Fitzsimmons problem."

Two years ago, Fitzsimmons, a former national advocate for abortion rights, made similar assertions about partial-births. But later he confessed he had "lied through his teeth" about this. In an interview with Nightline, he said that most of these controversial abortions are in fact elective terminations of normal pregnancies.

When asked about this, Susan Closter-Godoy, spokeswoman for Planned Parenthood of Rhode Island in Providence, says Fitzsimmons's claims on Nightline have never been proven. Then again, neither have Planned Parenthood's.

A shrewdly vague bill

Modeled after a ban that was passed in Congress but vetoed by President Clinton last year, the Rhode Island bill appears to target what's known in the medical community as an intact D&E (dilation and extraction), in which a fetus is extracted, feet first and intact, from the uterus and the brains are drained out through a small hole in the base of the skull.

But Rodriguez says the bill's language is so vague, it doesn't really apply to any known procedure. No doctor "partially vaginally delivers a living human fetus before killing the infant and completing the delivery," as the proposed law says. That sounds like infanticide, says Rodriguez.

"This whole legislation is flawed and uses inappropriate terms," he says. "It's downright ignorant of what the actual procedure does."

Maybe so, but then why are Rodriguez and Closter-Godoy lobbying so hard against it? In truth, local anti-choicers chose the phrase "partial-birth" for shrewd legal reasons, not for ignorant ones. Indeed, their decision to use "fetus" and "infant" interchangeably throughout their legislation is also telling.

"Because of the way they're defining the issue, it's not an abortion. It's a partial birth, so Roe v. Wade [the 1973 US Supreme Court ruling that legalized abortion] doesn't apply. That's how they see it," says Janet Crepps, a staff attorney for the Center for Reproductive Law and Policy in New York. "Still, just because they call it a birth doesn't make it a birth."

In fact, there is some debate over whether a fetus, in an intact D&E, is already dead when it enters the canal. While anti-choicers like Parker say the procedure "kills a living baby just inches away from being born," Rodriguez maintains that the baby dies peacefully from anesthesia given to the mother during the operation.

Another reason why the language is not medically specific is that, as it stands now, the bill could apply to more than an intact D&E. Again, this is probably a deliberate strategy, but pro-choicers may be hesitant to argue this point because that would involve delving into the nitty-gritty of abortions.

Faxed a copy of the Rhode Island bill, Crepps says it would apply to most methods of abortion. In fact, those who believe that life begins at the moment of conception could argue that every abortion is a partial-birth abortion, as defined by the Rhode Island law, says Crepps.

According to the bill, an abortion would be illegal if the fetus is still alive when it enters the birth canal. But in almost any late-term (usually meaning after 20 weeks) abortion, part of the fetus, particularly the legs, can slip into the canal. This is true of even a standard D&E, a highly common procedure in which the fetus is terminated while still in the uterus, usually by lethal drugs or by dismembering it with surgical devices. According to Rodriguez, "between 12 to 20 weeks gestation, there is no safer way of ending a pregnancy" than a standard D&E.

Crepps, whose organization if fighting several state bans virtually identical to Rhode Island's, says that "there is definitely room to narrow the definition, but anti-choice groups have repeatedly defied requests to clarify the language. They refuse to start with any medical terminology whatsoever."

Two weeks ago, a federal judge in Michigan agreed the term "partial-birth" was far too vague for that state's ban, says Crepps. The judge ruled that the Michigan law, which took effect in April, had to specify which medically approved procedure, such as the intact D&E, it was outlawing.

A constitutional question

According to Crepps, the Michigan ban and others like it, including a proposed federal ban that the Senate will vote on during the week of May 12, face other court battles as well. This year, about 40 states have considered bans on partial-birth abortions, partly as a result of Clinton's veto of the measure last year. Out of these, 11 have passed laws, but only two, those in Utah and South Carolina, have gone unchallenged. (A federal judge in Ohio actually struck down a ban in that state.)

In South Carolina, doctors didn't object to the ban because they don't perform many intact D&Es, says Crepps. But the Utah ban is less controversial because it includes crucial constitutional protections that honor Roe v. Wade, she says.

The law, for instance, allows a partial-birth to be performed if a mother's health is at stake. Rhode Island's bill would strike the so-called "health clause," as anti-choicers see it as too broad. A woman's health, after all, could include her mental well-being, they say.

But Roe v. Wade is clear on this issue -- A state can impose restrictions on abortions during the second trimester only if they are meant to protect a woman's life or health and don't impose an undue burden on the patient.

The Utah law also limits the ban to post-viability (after 24 weeks) abortions, while the measures in Rhode Island and Michigan make no reference to any trimester. But again the Supreme Court has ruled that a state cannot ban even post-viability abortions without including a health clause.

If a ban like Rhode Island's managed to survive a Supreme Court challenge, then, it obviously would be an enormous step backward for Roe v. Wade, providing an opening for the court to expand the range of abortion restrictions permitted under the US Constitution. Anti-choicers "have been very clear," says Crepps. "They've said that this year it's intact D&E. We're going to ban procedures one at a time."

"Ultimately, they want to prevent all second-trimester surgical abortions," she says, "and to narrow and eliminate circumstances in which abortions are done for a woman's health."

No way to enforce it

But while anti-choicers try to do this, they have given little, if any, thought to how to enforce such a ban. How could anyone really prove that an illegal abortion had occurred, short of a confession by a doctor or patient? Who else would've witnessed the alleged crime inside the mother's womb?

When asked about this, Anna Sullivan, chair of the Rhode Island State Right to Life Committee, acknowledged the problem. The bill, after all, would allow the father and, in some cases, grandparents to sue a doctor who performed a partial-birth.

Sullivan, however, says the legislation is aimed more toward "the girl who, at the time, didn't know it was going to be a partial-birth abortion and finds out later." She admits this is an awfully specific scenario to try and legislate, "but who knows what's happening behind closed doors."

Crutcher of Life Dynamics maintains that states with bans will have to hire people to monitor clinics, but he doubts many would apply for the job. "Hard-core pro-aborts, of course, wouldn't say anything, while pro-lifers wouldn't be able to go in there morally."

Besides, if an accusation is made, what kind of evidence would be needed to prove it in court? Medical records can be modified, after all. "Yes, it does depend on whether the doctor lies," says Sullivan. "And if he's willing to do abortions, what's a few lies?"

In the end, then, Sullivan says the Rhode Island bill may accomplish nothing more than bringing abortion back into the limelight. The partial-birth method, after all, "is easier to focus on than other procedures," she says. "It's very graphic."

And that is precisely the point, says Crutcher. "What I think happened is that when Life Advocate magazine produced all these pictures of partial-birth abortions, the national Right to Life looked at them and saw dollar signs," he says. "They were counting on a lack of knowledge about abortion procedures. They banked on the fact that the average person would be so horrified and think this was something new."

Crepps agrees that partial-birth is merely the anti-choice movement's latest attempt to make an end run around Roe v. Wade. The debate has nothing to do with the actual procedure, she says.

Only five years ago, "the anti-abortion forces were hoping to get a complete reversal of Roe v. Wade. When that didn't work, they reconsidered their strategies," says Crepps. First, they tried a mandatory waiting period for women seeking to have abortions. Now they've zeroed in on a specific procedure.

But in Rhode Island, at least, the strategy seems to be working. Sullivan says Right to Life is gaining momentum. "People are signing up, and more of them are willing to talk to their legislators," she says.

After turning up the heat considerably, the group has also managed to "sway some staunch pro-choice legislators" on the issue of partial-birth, says Sullivan.

"They know what a gruesome procedure this is. You don't have to draw pictures for them," she says. Of course, a few graphics never hurt, and Right to Life is more than willing to provide them.

Jody Ericson can be reached at jericson[a]phx.com.