THE OUTCOME of what is almost certain to be a legal battle fought all the way to Supreme Court will hinge on whether the justices accept the findings of Congress that the procedure is never medically necessary and poses additional health risks to the mother.
DENOUNCED AS 'UNCONSTITUTIONAL'
Abortion rights supporters have pledged a court challenge. "This bill is unconstitutional," argued Sen. Barbara Boxer, D-Calif., citing the lack of an exemption in cases where the health of the mother is in jeopardy. The bill does exempt a partial-birth abortion that is necessary to save the life of a mother.
The procedure involves partial delivery of a fetus until the head or part of the lower body is outside the mother's body.
At that point, the doctor punctures the skull of the fetus with a scissors, then inserts a suction tube and vacuums out the developing brain, killing the fetus.
The bill, sponsored by Sen. Rick Santorum, R-Pa., says the procedure "blurs the line between abortion and infanticide in the killing of a partially born child just inches from birth."
It was approved by a vote of 64 to 33, with 16 Democrats joining 48 Republicans in supporting it, while three Republicans and independent Jim Jeffords of Vermont joined 29 Democrats in opposing it.
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Not voting were Sens. Joe Biden, John Edwards and John Kerry, all Democrats.
The House is expected to pass the bill in about a month. Congress twice before passed legislation to impose a ban, but former President Clinton vetoed both measures.
JAIL SENTENCE OR FINE
The bill says that anyone who performs the procedure known as partial-birth abortion "thereby kills a human fetus" and will be fined or imprisoned for not more than two years.
A woman upon whom a partial-birth abortion is performed may not be prosecuted under the bill.
The Santorum bill includes a non-binding amendment, approved by a 52 to 46 vote Wednesday, that says it is the sense of the Senate that the Supreme Court's 1973 Roe v. Wade decision, which legalized most abortions in every state, "secures an important constitutional right" and should not be overturned.
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The battle after Bush signs the bill will center on how much deference the courts give to the findings of fact that Congress made with regard to the abortion procedure.
The bill says that based on testimony Congress has found that "a partial-birth abortion is never necessary to preserve the health of a woman" and "poses significant health risks to a woman upon whom the procedure is performed."
The legislation also says that Congress found that "the gruesome and inhumane nature of the partial-birth abortion procedure and its disturbing similarity to the killing of a newborn infant promotes a complete disregard for infant human life."
SUPREME COURT PRECEDENT
In a 2000 decision called Stenberg v. Carhart, the Supreme Court affirmed lower court rulings that had struck down a Nebraska abortion statute similar to the Santorum bill.
A five-justice majority held that the Nebraska law was invalid because it lacked an exception for the preservation of the health of the mother.
The majority also said the Nebraska law imposed an undue burden on a woman's ability to get an abortion. The court had ruled in a case called Casey v. Planned Parenthood in 1992 that states could regulate abortion but not place "a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus," that is, a fetus that could not survive outside the mother's womb.
The majority relied on a lower federal court's factual findings that the partial-birth abortion procedure was medically as safe as, and in many cases safer than, alternative abortion procedures. The Santorum bill relies on congressional testimony that disputes that federal court's findings.
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