On Oct. 21 of this year, the Senate passed the Partial-Birth Abortion Ban Act and sent it to President Bush for his signature, thus enacting the first ever federal prohibition of a specific abortion procedure. Anti-abortion activists rejoiced that the legislation, first introduced in Congress eight years ago and vetoed twice by President Bill Clinton, was now law. Abortion rights groups were dispirited, but not surprised by their defeat and took solace in the belief that the legislation would be declared unconstitutional (and, in fact, three federal judges have since issued separate decisions blocking the ban). Most Americans were no doubt simply relieved that the gruesome and controversial debate was going away.
Democrats were left asking themselves--or should have been asking themselves--what went wrong. After all, Democrats (and pro-choice Republicans) are generally where the public is on abortion. Fully 77 percent of Americans, according to a January 2003 Gallup poll, support the right to choose in some or all circumstances. And yet, Republicans (and pro-life Democrats) successfully passed a "partial-birth" abortion ban that won 80 percent public support. There's a simple explanation for this apparent contradiction. Most Americans support a woman's right to choose. But they also have a general moral discomfort with "late-term" abortions, performed during the last few months of pregnancy. Anti-abortion activists and legislators played on that moral unease and achieved broad support for the bill largely by focusing their public campaigns on the vivid pictures and descriptions of "partial-birth" abortions performed late-term.
Of course, their public campaign was misleading. If doctors can't use this particular procedure, they will substitute another--so the "partial-birth" prohibition will not reduce the number of abortions at all. Anti-abortion groups know this perfectly well, but the bill is still more than a symbolic victory. Having won this fight, they will go on to legislate bans against other abortion procedures, eventually making abortions almost impossible to obtain. "That procedure isn't what we care most about," admits John Jakubczyk, the general counsel for Arizona Right to Life. "Our goal is to stop the killing of unborn children at any stage of development."
Those who support a woman's right to choose need to find a way to expose this dishonesty while affirming their alignment with the public's general pro-choice outlook. To do that, they must grapple with the average voters' real discomfort with late-term abortions--a discomfort that only increases as advances in science make it possible for younger and younger fetuses to survive outside the womb. The obvious solution is a law that would preserve the right to early-term abortions while prohibiting late-term ones except in cases where a mother's health is threatened.
Such a law would largely put an end to the decades-old trench warfare over abortion, marginalizing conservatives who favor a total ban. It would be consistent with the underlying concept, fetal viability, that the Supreme Court used to determine the stages of pregnancy during which government regulation or prohibition of abortion would or would not be constitutional. It would reduce the number of abortions performed--itself a goal most voters agree is important, so long as it doesn't come at the expense of women's health and safety. And it would have the support of the overwhelming majority of the American public.
With luck, such a bill may some day pass. But it won't be easy. I know, because six years ago, I tried. As a Senate staffer, I worked with a group of senators from both parties for such a compromise. We failed, and the story of that failure illustrates the power of organized extremists on both sides to thwart a great idea.
Stabbing baby dolls
In the spring of 1995, during a lull in the abortion war, Rep. Charles Canady (R-Fla.), a conservative anti-abortion politician, came across a disturbing but fascinating paper written a few years earlier by an Ohio doctor named Martin Haskell. The paper outlined an abortion procedure that sounded horrific. As Haskell described it, the procedure involved moving a fetus to the birth canal, depressing its skull, and then removing the entire body from the patient. The aspect that struck Canady--and other anti-abortion advocates--was this: The fetus was still alive until only its head still remained inside the patient.
Haskell called the procedure "dilation and extraction" (also known as D&X) and advocated it as faster, cleaner, and safer than removing the fetus by pieces--the other common method for second-trimester abortions. The "why" of the procedure did not matter to Canady--he recognized that the "how" was immensely important. He now had a weapon with which to restart the abortion wars, which had lost steam in previous years following several abortion rights victories. The clunky medical term "dilation and extraction" wouldn't do, however. So a staffer suggested "partial-birth" abortion. A new phrase entered the political lexicon.
Canady, then chair of the House Judiciary Subcommittee on the Constitution (he is a Jeb Bush-appointed district court judge in Florida), now introduced the Partial-Birth Abortion Ban Act of 1995, and held a hearing on the bill in his subcommittee the very next day. Using very few words, the bill made it a crime for any doctor to perform the procedure he called "partial-birth" abortion.
In one swift, brilliant move, Canady had taken the abortion debate away from the question of timing, where it had stalemated, and focused it instead on the gruesome description of a procedure. Although the American public was generally in favor of keeping abortion legal, people didn't want to think about the actual procedures involved, especially when performed on a late-term fetus. This new strategy put those details front and center.
One week after the introduction of Canady's bill, Sen. Bob Smith (R-N.H.) joined the cause with his own version of the legislation and a show-stopping performance on the Senate floor during which he "demonstrated" the abortion procedure by stabbing a baby doll in the neck with a pair of scissors. In quick succession, both the House and Senate Judiciary Committees held hearings on the issue and approved the legislation. The full House and Senate each passed the bill by late 1995, but, the following spring, Clinton vetoed the legislation, arguing that it failed to provide an exception for threats to the health of the mother.
By the time the Republican leadership scheduled a vote to override Clinton's veto--waiting until less than a month and a half before the 1996 election--it was clear that "partial-birth" had become a losing topic for Democrats. During the August recess, senators had gotten an earful about it from constituents, most of whom reacted viscerally to the description of D&X. Sen. Tom Daschle (D-S.D.) was one of those who began to hear about "partial-birth" everywhere he went. Returning to the Senate in September, senators prevailed upon the Democratic Leader to head off a protracted fight over the issue, and Clinton talked to him about it during a fall trip to South Dakota to stump for Senate candidate Tim Johnson. One week later, the vote to override Clinton's veto fell nine votes short in the Senate. But the larger battle was just warming up.
When not how
The prospect of debating in circles for years over an abortion procedure whose description gave even staunch abortion rights senators the willies was not a welcome one for Democrats. Many viewed the example of Tom Harkin --who saw a 15-point lead in his 1996 reelection campaign evaporate within the space of two weeks after his opponents raised the "partial-birth" issue--as a cautionary tale. Others were genuinely tired of opposing abortion restrictions that fell just short of being reasonable. Some of these senators were politically liberal, but came from religious backgrounds that had firm, clear teachings on abortion, and they often found it difficult to reconcile their political and religious beliefs.
Although they had not sought this battle, some Democrats found that the debate over "partial-birth" abortion gave them an opportunity to do what they felt was the right thing for the right reasons. Under normal circumstances, abortion rights organizations would never let them get away with writing a bill intended to restrict abortion. But the emotional nature of the "partial-birth" debate had swayed public opinion away from a hard "pro-choice" stance and abortion rights organizations worried that the issue might marginalize them.
So just weeks after the veto override vote, Daschle led a group of like-minded senators--(including Patrick Leahy (D-Vt.), Tom Harkin (D-Iowa), Olympia Snowe (R-Maine), Susan Collins (R-Maine), and Joe Lieberman (D-Conn.)--in an effort to develop legislation that would restrict abortion while protecting women. I was one of the staff members who participated in the effort that would be known as the Alternative, as many of the senators considered it a better way to address the problem of abortion than the "partial-birth" ban. Our unique approach was to focus not on how an abortion was performed, but on when.
The answer that provided the defining framework for the legislation was that before viability, the point at which a fetus can live outside the womb, abortion should be legal and doctors should be able to use the safest procedure available. After viability, however, abortion--regardless of the procedure used--should be restricted to those instances in which it is absolutely necessary to protect a woman's life or health. These were the key points on which Daschle and his colleagues agreed, and they formed the basis of the Alternative.
In theory, this made brilliant political sense. It would leave in place a woman's right to choose in the first few months of pregnancy. It would reduce the overall number of abortions--something a partial-birth ban would not accomplish--thus appealing to moderate conservatives. Pro-life advocates might still push for a partial-birth abortion ban, but without the ability to use images of fully-formed, Gerber-like babies, the issue would have far less emotional traction. The Alternative, in short, would fulfill Clinton's popular and oft-repeated goal of making abortions "safe, legal and rare."
But first we would have to assuage the fears of abortion rights leaders. Though rattled by the partial-birth juggernaut, and modestly open to new ideas, they were not exactly keen to discuss any legislation that would severely limit the number of abortions, even late-term ones, and unwilling to sign on to the Alternative. That in itself wasn't such a bad thing--in fact, an endorsement by organizations like NARAL would make it virtually impossible for us to attract conservative support. But liberal senators wanted some assurance that the groups did not oppose the Alternative. The abortion-rights groups refused to offer such a pledge, but they wanted to remain part of the discussion to develop the legislative language, meaning--we believed--that if we could address their concerns, we could still keep them from opposing the bill.
On Feb. 25, 1997, an article appeared in The New York Times that moved momentum in our direction. In the article, Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers, admitted that D&X is actually used tens of thousands of times each year for any number of reasons, including on healthy, pre-viability fetuses. This infuriated pro-choice senators who, in voting against the partial-birth ban, cited arguments provided by pro-choice groups, that the D&X procedure was used "less than one hundred times each year." Pro-choice groups were forced to admit that this figure referred only to third-trimester D&X abortions.
Another move by pro-choice groups also strengthened the resolve of senators backing the Alternative. Some pro-choice activists told reporters that they could not support the compromise bill because it failed to provide an exception that would allow a woman to have an abortion to protect her mental health. But in private, these same leaders could not provide one hypothetical case in which a woman would require a post-viability abortion because of threats to her mental--but not physical--health. In truth, "mental health" was a code for allowing women to abort severely deformed fetuses on the grounds that carrying such a fetus was a great psychological burden.
Next, we worked on winning the support of moderate anti-abortion GOP senators. Devout anti-abortion senators refused to consider the Alternative if it included a health exception, claiming that any allowance for health was simply a loophole. This belief is based on a willful misinterpretation of abortion law by anti-abortion leaders, who have promoted the idea that doctors are obligated to consider "emotional, psychological, familial, and physical" factors when they consider a woman's health. In fact, Doe v. Bolton, the companion case to Roe that is generally understood to have provided the foundation for determining what health is in the context of abortion, says that doctors may consider those factors as pertinent to a woman's health, not that they must.
But a few senators indicated they would be willing to consider voting for an exception that was specifically limited to threats to a woman's "physical" health, and they debated the relative merits of various modifiers to "physical" to make the exception as strict as possible. At one point, trying to allay the concerns of senators on both ends of the spectrum, some of my colleagues and I turned to the thesaurus in a desperate attempt to find language that would be acceptable to all. Was "serious bodily injury" strict enough? What about "substantial risk of grave impairment to the health"? "Serious risk of substantial impairment?" In the end, the senators settled on "grievous." That won over Sen. Mary Landrieu (D-La.) and drew pro-life senators such as Byron Dorgan (D-N.D.) and Kent Conrad (D-N.D.) closer to our camp.
We also went to work trying to line up support from the medical community. One of the objections lodged by anti-abortion groups was that they didn't trust doctors to use their best medical judgment to determine either when viability took place or when a woman's health was in danger. The implicit suggestion was that many doctors were all too eager to perform late-term abortions and would abuse their power to make any situation fit into the exceptions written into the bill. We made the case to the American Medical Association (AMA) that the partial-birth ban was an infringement on their professional independence. We also worked with a subgroup of the AMA, the American College of Obstetricians and Gynecologists (ACOG), to develop legislative language that was understandable to doctors--giving them a clear idea of when abortions could and could not be performed--and they ultimately lent their professional endorsement to the Alternative. ACOG's parent organization, however, the AMA played hard to get.
Surprisingly, Nancy Roman, a reporter for The Washington Times, the conservative daily in Washington, D.C., then began writing front-page stories documenting bipartisan support for the Alternative and indicating that it represented a good-faith effort to find middle ground. "I can't believe Tom has gone this far," one Senate Republican told her, adding, "I'm not sure what I'm going to do. It definitely puts pressure of those of us who are pro-life." The subhed for one article proclaimed, "Proposal stricter than GOP measure," with the text describing the Alternative as "go[ing] further in restricting abortion than the GOP's partial-birth ban."
Republicans in the Senate were enraged by the positive press coming from "their" newspaper and Republican Whip Don Nickles contacted editors at The Washington Times to express his dissatisfaction. Within a few days, Roman was first pulled off the assignment and then put back on. The damage had already been done, though. The positive quotes given to Roman by Republican senators revealed that at least some of Daschle's conservative colleagues viewed his Alternative as something other than a crass attempt to gain political cover.
Doctoring the law
Both pro-life and pro-choice groups went on the offensive. In the absence of a mental health exception, NARAL threatened to count a vote in favor of the Alternative as an "anti-choice" vote – a ridiculous threat, since it would put them in the position of assigning "pro-choice" marks to such "partial-birth" ban proponents as Sens. Bob Smith (R-N.H.) and Rick Santorum (R-Pa.). "Here's the deal," an anonymous abortion rights activist told a reporter, "We don't like the Daschle bill. It would be a gigantic step toward rolling back abortion rights."
Anti-abortion groups, meanwhile, went on the offensive before they had even seen legislative language for the Alternative, running notices decrying the "loopholes" in newspapers around the country. The Southern Baptist Convention called the Alternative a "transparent political sham." And the U.S. Conference of Catholic Bishops commissioned full-page ads that suggested women sought late-term abortions because they "can't fit into a prom dress," a line they later admitted was invented by an ad agency
Meanwhile the AMA was lobbying furiously to see the exact language of the health exception – a provision that we had kept under wraps in an attempt to keep the focus on drawing a legal line at viability and to forestall attacks based on the specific wording of the bill. Finally, under pressure, we relented, faxing to the AMA's chief lobbyist on the issue a copy of language prohibiting post-viability abortions except in cases where a doctor concludes that continuation of the pregnancy would risk "grievous injury" to a woman's "physical health." Within 24 hours, that health definition found its way to the office of Republican Whip Don Nickles and appeared in the pages of The Washington Times.
In a final blow, the AMA ultimately refused to support the bill, claiming a history of neutrality regarding abortion legislation. Opponents were thrilled, noting at every opportunity that, "Even the American Medical Association does not endorse…" Just weeks later, however, the AMA changed this longstanding position of neutrality and professional objectivity in order to endorse the "partial-birth" abortion ban after obtaining higher Medicare reimbursement rates for doctors. An internal AMA audit later concluded that the organization "blundered" and that the endorsement was politically, and not medically, motivated. But that would come much later. As the bill made its way to the floor, those advocacy groups we had hoped would stay neutral were joining the fight against the bill.
The Alternative ultimately came to the floor of the Senate for consideration and debate on May 14, 1997--which happened to also be my birthday. I celebrated by spending 10 hours sitting next to Daschle behind the floor leader's desk, watching him lead off debate with a 45-minute presentation that impressed even hardened political opponents with his command of the complex constitutional and medical issues involved. He outlined the framework of the Alternative and explained how it was a constitutional approach to restricting the abortions that Americans want to see eliminated while allowing those that Americans want to see protected.
Rick Santorum led the floor fight against the Alternative from the conservative side, proclaiming with wide-eyed fury that the bill would "allow them to stab… [blink, blink]…babies…[blink, blink]…in the neck," and slashing at the air with his pen. Barbara Boxer, who had told Daschle she would not lobby against the bill, attacked on the Alternative's opposite flank, passing around a letter from Harvard law professor Lawrence Tribe in which he warned that the Alternative could be unconstitutional, and she urged her colleagues to oppose the Alternative on those grounds. Throughout the day, lobbyists from all sides lurked just outside the Senate chamber to catch senators as they made their way in and out.
As the day wore on, an unexpected number of senators were still undecided. Freshman Sens. Mary Landrieu and Susan Collins spent the day working the phones as unofficial whips for the Alternative, since Democratic Whip Harry Reid, a firm pro-lifer, had already committed to voting against the measure. The energetic Landrieu talked to senators, chiefs of staff, and to even the most junior legislative aides, trying to get a sense of where the votes lay. Meanwhile, discussion on the Senate floor continued under the watchful eye of Senate Chaplain Lloyd Ogilvie who, in a very unusual move, sat in the chamber observing debate.
Ultimately, both anti-abortion and abortion rights senators found excuses to oppose the Alternative based on its very nature of trying to achieve consensus on a difficult issue. Because the language wasn't written to appeal exclusively to one side in the debate, extremists on both ends nit-picked provisions in the bill that weren't "pure" enough. One by one, senators fell away from the final tally of supporters--this one because the health exception was too broad, that one because it was too narrow; this one thought doctors were given too much discretion, that one thought doctors' hands were tied. Senators who wanted to oppose the measure took cover in the tightly-written definitions that had been intended to insure that the bill's impact was not vague or confusing, twisting the language to suit their purposes.
When the clerk called the roll for a final vote on the Alternative, Sens. Snowe and Collins were the only Republicans to vote in favor. Eleven Democrats (an assortment of strong pro-lifers such as Fritz Hollings and Bryon Dorgan, and strong pro-choicers including John Glenn, Frank Lautenberg, and Dianne Feinstein) voted against the bill. In the end, the Alternative, considered both too permissive and too restrictive, was defeated by a vote of 64 to 36.
Even so, The Washington Times wasn't through with the Alternative. Roman's story on the eventual defeat of the Alternative led with the intriguing news that Senator Daschle "said he is willing to reintroduce a version of the bill that might appeal to Republicans," a move that Daschle had previously refused to take. The lede no doubt came as a surprise to Daschle because it was simply not true. Neither was the quote that followed it: "'I'd be willing to talk to them,' Mr. Daschle said yesterday, upon learning that Republicans might reconsider his proposal. 'I'd be willing to compromise.'" Simply put, the quote was fabricated and the lede was a lie. Roman sent Daschle a personal apology several weeks later, explaining that the story was submitted as a clean piece and that the suspect lede and quote were inserted by editors.
And yet, the Alternative was never so popular as in defeat. Leading conservatives immediately scolded Republicans for missing their last best chance to cooperate with Democrats on abortion legislation, recognizing that the Alternative would have been a big step toward reducing abortion rates. The Wall Street Journal ran an op-ed urging Republicans to reconsider. "You can't be so used to drubbing your enemy that you don't recognize it when they make some sense," William Bennett told The Washington Times. "If I didn't know who sponsored this, I would have thought it was a pro-life Republican." And, after the "partial-birth" ban passed the Senate still short of the votes necessary to override a veto, Bill Kristol asked, "Do you want the best to be the enemy of the good even if there is a little bit of a loophole? Isn't it better to have a ban of abortion on viable fetuses than no ban?"
It's a question that should be taken seriously. If the sponsors of the Partial-Birth Ban Act are to be believed, their bill will not stop one single abortion. They have always claimed that a health exception wasn't necessary because "another procedure can always be used." This is an arguable assertion. But if they believe their own rhetoric, anti-abortion politicians must recognize that the ban would simply require doctors to use another procedure to perform the same abortion, resulting a zero net effect on abortion rates. Of course, most ban proponents understand that the "partial-birth" ban is just phase one in a strategy that aims to outlaw all abortion procedures. After all, once politicians have voted to prohibit D&X, they can't very well allow a procedure that dismembers fetuses.
At the same time, abortion rights activists missed an opportunity to reassure a public made wary by the "partial birth" issue. Some liberal commentators took them to task for being stubbornly near-sighted. Clarence Page, noting that Clinton, at least, understood the politics of the situation, wrote: "By supporting a measure that would protect women from 'grievous injury'--and watching his foes shoot it down--Clinton robs Republicans of a chance to embarrass him. Instead, he helps widen the 'gender gap.'" In the end, abortion rights supporters fell back on the argument that the Alternative would have been unconstitutional--an assertion that is unknowable, although there is no question that the measure was far more constitutional than the "partial-birth" ban. When pressed, however, some abortion rights leaders admitted that they would rather see a truly bad bill become law because it would be much easier to fight in the courts. This is the classic abortion rights strategy William Saletan writes about in Bearing Right: How Conservatives Won the Abortion War, and one which has painted pro-choice Democrats into a corner. It is a strategy that rests on a confident assumption that the U.S. Supreme Court would back them up, an outcome that is far from certain now that they stand just one Supreme Court retirement away from the possibility of losing the once-inviolate protection of abortion in Roe v. Wade.
It's time for defenders of a woman's right to choose, both Democrats and Republicans, to revisit the Alternative. Its moral, policy, and political logic are if anything more compelling than they were six years ago. Of course, there won't be an opportunity to raise the issue again if Republicans retain the White House and Congress in November. That's why a savvy and aggressive Democratic nominee for president ought to campaign on it now.