Late-term abortion ban clears Senate


WASHINGTON - Opening a new phase yesterday in the volatile judicial debate over abortion rights, the Senate passed legislation banning a procedure its opponents call "partial-birth" abortion, paving the way for its enactment this spring.

The action was a triumph for the Republican Congress and for President Bush, who cheered the vote, calling the abortion method "an abhorrent procedure that offends human dignity."

The Senate's vote "is an important step toward building a culture of life in America," Bush said.

Abortion rights advocates saw the vote differently.

"It's a major strike - there's no question about that - against a woman's right to choose," said Sen. Dianne Feinstein, a California Democrat.

Jubilant Republicans, in the aftermath, declared victory in their seven-year fight to criminalize the procedure and to carve out one of the most substantial exceptions to abortion rights since the Supreme Court legalized abortion in its 1973 Roe vs. Wade ruling.

"The United States Senate went on record today very strongly in support of banning this evil, heinous procedure that is outside the bounds of medicine, and outside the bounds of Roe vs. Wade," said Sen. Rick Santorum, a Pennsylvania Republican and the measure's chief sponsor.

Of the 64 senators who supported the ban, 17 went on record Wednesday in support of the landmark Roe decision, suggesting that they, too, believe there are some abortion procedures that fall outside of that ruling and deserve to be banned by the federal government.

But abortion rights champions decried the measure as unconstitutional and warned that the ban strikes at the heart of the Roe decision, not at its margins.

Kate Michelman, the president of NARAL Pro-Choice America, called the measure "just the beginning of the rollback" of the ruling.

"Today, the newly elected Senate anti-choice leadership took direct aim at a woman's right to choose by voting to criminalize safe abortion procedures and, as a result, the women of America lost critical freedoms," Michelman said.

The final vote was 64-33, with 16 Democrats joining 48 Republicans in supporting the ban, and three Republicans joining 29 Democrats and the Senate's sole independent, James M. Jeffords of Vermont, in opposing it.

Maryland Sens. Barbara A. Mikulski and Paul S. Sarbanes of Maryland, both Democrats, voted "no."

"I could not support the Santorum bill because it does not have an exception to protect the health of the woman," Mikulski said, noting that she supported a "sensible alternative" that had such a provision.

To Bush in spring

Rep. Steve Chabot, an Ohio Republican who is the chief sponsor of a companion measure, said his bill could pass the House by the end of April, sending it to a conference committee and to Bush's desk for his signature by midspring.

The House overwhelmingly passed a similar bill during the last Congress, but it died in the Senate, which was then controlled by Democrats.

On two previous occasions, the legislation cleared Congress only to be vetoed by then-President Bill Clinton.

Now, Chabot said, he is "more confident than ever" that the measure will become the law of the land, "relegating this horrific procedure to a sad chapter in our history."

Still, the ban faces a less certain future in the courts, which are certain to examine it closely, especially in light of a Supreme Court ruling in 2000 that struck down a similar Nebraska statute.

Sen. Mike DeWine, an Ohio Republican who has been a leader in congressional efforts to ban the procedure, sounded less than confident that, once enacted, the new law will be able to pass muster at the high court. "There's a chance it could be upheld," he said.

Message to the court

DeWine took to the Senate floor five times this week to give impassioned pleas against the procedure and, he said, to lay the groundwork for a strong legal argument for upholding the ban.

"The debate was to the Supreme Court because that's where it's going to go," DeWine said. "I was arguing, basically, to the court."

The Senate-passed measure outlaws a procedure known in medical circles as "dilation and extraction" or "D and X," in which a fetus is partially delivered, its skull suctioned and then removed from the mother.

It is used to end certain second- and third-trimester pregnancies.

Wednesday, the Senate rejected two attempts by Democrats to narrow the ban to allow exceptions for cases in which the mother's health was at risk.

Those amendments were efforts to highlight the issues raised by the Nebraska statute. In Stenberg vs. Carhart, the Supreme Court struck down that law because it did not have an exception to protect a woman's health and because, the court said, its definition of "partial-birth" abortion was so vague it could have applied to constitutionally protected abortions.

Rep. Steny H. Hoyer of Southern Maryland, the Democratic whip, is the co-sponsor with James C. Greenwood, a Pennsylvania Republican, of a similar health exception. But Republican leaders have indicated they will block Hoyer and Greenwood - as they have repeatedly in past years - from offering the amendment when the House debates the ban.

"I do not believe it will be taken up in the House," Chabot said.

'Contentious, divisive'

Hoyer has attacked Republican leaders for what he expects will be an attempt to stop his amendment from being debated and voted on in the House, and he expressed disappointment that the Senate rejected similar language this week.

"This refusal to meet on common ground is an all-too-familiar tactic in the debate over the contentious and divisive issue of abortion," he said.

The ban's sponsors said they addressed the Stenberg ruling by narrowing the definition of "partial-birth" abortion in their measure and by including in the bill several pages of congressional assertions that such a procedure is dangerous and never necessary to protect a woman's health.

With the new language, sponsors of the ban said, the same justices who found the Nebraska law unconstitutional could uphold the anticipated new federal ban. But Santorum said that some of the justices, in attempts to protect abortion rights as absolute, had gone "off the deep end" in their interpretation of the Constitution.

Abortion rights advocates contended that the ban's sponsors did not address the constitutional problems and were, instead, relying on Bush changing the makeup of the Supreme Court to include more justices who shared his goal of overturning Roe.

'Anti-choice justices'

"They know this law is unconstitutional," Michelman said in an interview. "Their hope is that the president, who wants to end legal abortion just as much as [congressional Republicans] do, will by that time have succeeded in placing one or two more anti-choice justices on the Supreme Court and that this case will be a vehicle to either overturn Roe vs. Wade outright, or to eliminate the protections guaranteed by Roe."

The National Right to Life Committee, an interest group that opposes abortion rights, criticized the Supreme Court majority that struck down the Nebraska statute and voiced the hope that the court rules differently on the federal law.

"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," said Douglas Johnson, the group's legislative director.

During floor action, the Senate voted narrowly to attach nonbinding language reaffirming the Senate's support for the Roe vs. Wade ruling and declaring that it should not be overturned. But the victory was fleeting - the language is all but certain to be removed in a conference with the House.

"I think it will have difficulty finding its way back to the Senate floor," Santorum said.

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