Partial-Birth Abortion Ban Set
to Advance, Media Errors Continue

October 1, 2003—Washington, DC: Members appointed to a conference committee to complete work on the partial-birth abortion ban are wasting no time in getting started. They are expected to meet Tuesday, where they will remove an amendment to the bill added in the Senate that endorses the Roe v. Wade Supreme Court decision legalizing abortion.

Once they finish, all that remains is for each chamber to approve the committee's report and then the bill goes to President Bush for his signature.

At least one house is expect to take up the conference committee's report this week. Both chambers approved the pro-life bill earlier this year by about a 2-1 margin, and are expected to support the conference committee report, though a last-minute filibuster in the Senate could materialize.

National Right to Life legislative director Douglas Johnson said the American public overwhelmingly supports a ban, but the question remains as to whether the Supreme Court will overturn this version of it as they did in 2000 with a Nebraska version containing slightly different language.

"President Bush, 70 percent of the public, and four Supreme Court justices say there is no constitutional right to deliver most of a living baby and then puncture her head with a scissors," Johnson explains.

"But in the Stenberg v. Carhart ruling in 2000, five Supreme Court justices said that Roe v. Wade guarantees an abortionist's right to perform a partial-birth abortion whenever he chooses. We hope that by the time this ban reaches the Supreme Court, at least five justices will be willing to reject such extremism in defense of abortion," Johnson said.

The bill represents the first direct national restriction on any method of abortion since the Supreme Court legalized abortion on demand in 1973.

Meanwhile, Johnson criticized the media on Monday for resurrecting errors about partial-birth abortion that have long been refuted.

Johnson singled out Gannett News Service reporter Pamela Brogan in particular for criticism -- and it's not the first time.

Brogan recently wrote a news story about the latest actions in the effort to move the ban forward. Her story appeared in the September 28 issues of the Detroit News.

That story presents two claims about Roe v. Wade that are demonstrably erroneous.

Brogan's article said: "The [Roe v. Wade] decision . . . said abortion decisions in the first trimester must be left to physicians. The court further said states could regulate or restrict abortion in later stages of pregnancy but must provide an exception for the health of the mother."

"The notion that the 'right to abortion' being enforced under Roe v. Wade is limited in some special way to 'the first trimester' is a gross misconception, which has been repeatedly refuted by the Supreme Court itself," Johnson explained.

Actually, Roe said that abortion had to be allowed for any reason until "viability," a stage when the baby can survive independently from the mother. That point is generally considered to be around 23 weeks, or the second trimester of pregnancy.

Most media outlets, including the New York Times and Associated Press, abandoned referring to Roe in terms similar to Brogan's long ago.

In addition, in the 1992 Casey v. Planned Parenthood decision, the court said abortion should be legal throughout the first two trimesters and wrote, "We reject the trimester framework, which we do not consider to be part of the essential holding of Roe."

In the Gannett article, Brogan also wrote that "a Bush appointment to the Supreme Court could provide a majority that would vote to overturn the court's 1973 decision in Roe v. Wade that legalized abortion."

While pro-life groups would be delighted to see Roe hanging by a thin one-vote margin, only three current justices favor overturning the landmark abortion decision: Rehnquist, Scalia, and Thomas.

Pro-abortion groups have also made the claim in an attempt to boost fundraising efforts by scaring donors.

The claim that the current Supreme Court has a 5-4 majority in favor of Roe assumes that Justice Kennedy favors overturning Roe. While he voted to uphold the ban on partial-birth abortions, Kennedy also voted to uphold Roe in the Casey decision and said nothing in his opinion in the Nebraska case to suggest he had changed his mind.

"The Gannett story appears to be another illustration of how, in the hands of some journalists, 'Roe v. Wade' is a very elastic concept that can easily be expanded or contracted depending on which version serves a particular story line -- and even used in clearly inconsistent ways within the very same story," Johnson concluded.