The federal abortion ban and reframing the debate

The Supreme Court has an opportunity to strike down the federal abortion ban, and we have an opportunity to reframe debate.

Abby Bar-Lev

The federal abortion ban, known to most as the Partial-Birth Abortion Ban Act, is a dangerous law that not only should be struck down as unconstitutional, but also presents an opportunity to reframe the abortion debate.

This November, the Supreme Court of the United States will hear a challenge to the federal abortion ban, in a case called Gonzales v. Planned Parenthood. The federal abortion ban was passed into law when the president signed it in 2003. It is notable for several reasons.

In many ways the federal abortion ban is redundant. Although that in itself does not make it an unconstitutional law, it is worth noting. Third-trimester abortions essentially have been banned since the Supreme Court decided Roe v. Wade in 1973. In his trimester analysis, Justice Harry Blackmun spelled out that once a woman is in her third trimester of pregnancy, the fetus is viable and therefore the state has an interest in regulating abortion. The exception to this is if the woman’s health is at risk.

That is where the unconstitutionality, not to mention absurdity, of the current federal abortion ban comes into play. There is no exception in the ban

for a case where the mother’s health is in jeopardy.

Even when the doctor believes a late term abortion necessary to preserve the health of the woman, the federal abortion ban ties the doctor’s hands. More so, the law’s language not only bans “partial-birth” abortion (the actual medical term is “dilation and extraction”), its language also would outlaw abortions as early as 12-15 weeks into a pregnancy.

Every court that has so far been faced with determining the federal abortion ban’s constitutionality has found it to be unconstitutional because it lacks an exception to safeguard the mother’s health.The Supreme Court itself in 2000 struck down a similar law passed in North Dakota because, among other things, it lacked such a provision. Justice Sandra Day O’Connor who, according to Planned Parenthood, was the “critical vote” in that 5-4 decision (Stenburg v. Carhart) has since retired and has been replaced by Justice Samuel Alito.

“Partial-birth” abortion is not just a legal and constitutional issue; it also is a rhetorical and highly political issue and offers an opportunity to reframe our way of talking about abortion, reproductive health care and privacy rights.

The term “partial-birth abortion” was created in 1995 by the National Right to Life Committee, not the medical profession. In 2000, the dilation and extraction procedure accounted for only “about 0.2 percent” of abortions “believed to be preformed that year,” according to a survey from the Alan Guttmacher Institute as reported to National Public Radio.

That leads to a few commonsense questions: Has anyone ever met a woman who tries to get pregnant for the purpose of having an abortion? And specific to controversies over late-term abortions, what woman gets pregnant, walks around for seven or eight months, then decides it would be a nice break in the day to go get an abortion?

For that matter, has anyone ever met a doctor who would be approached by that hypothetical situation and respond with, “Yeah! OK! Let’s

do it!”

No. Of course not.

Men and women who favor abortion rights are pro-choice. Choice. Privacy. Freedom. Health. Respect. Contrarily, the so-called “pro-life” movement is exclusively anti-choice.

The term “anti-choice” is not meant to offend, it is meant to define. The movement that opposes a doctor’s medical expertise, that purports it knows what is best for all women, that favors government intervention in the doctor’s office, is a movement that declares there should only be one choice: No choice at all.

In other words, the movement is undeniably anti-choice.

So why does so much of the public discourse walk on eggshells to refer to a “pro-life” movement?

Contemplate the term for a moment. Who isn’t pro-life? Calling the anti-choice movement “pro-life,” by definition alludes to the other side of the debate as being “pro-death” or “anti-life,” an offensive and bizarre notion.

The debate over reproductive health care should not be framed as a pro-choice versus pro-life issue, since there is no contrast between the terms. Instead it should be framed as pro-choice versus anti-choice.

When the Supreme Court hears Gonzales v. Planned Parenthood this November, it is important that we use the opportunity not only to recognize the constitutional issues involved, but the language that is involved as well. We must make a concerted effort to reframe the way we talk about reproductive health care.

Abby Bar-Lev welcomes comments at [email protected].