PONTIFICAL COUNCIL FOR THE FAMILY
REFLECTION BY CARD. ALFONSO LÓPEZ TRUJILLO
The term partial-birth abortion describes an abortion technique used in the final months of pregnancy, during which there is an intervaginal partial birth of the living fetus: the content of the brain is then sucked out before delivery is complete. This technique was legalized in the United States after the decision of the Supreme Court in the case of Roe vs. Wade in 1973, which authorized the different States to issue measures permitting artifically-induced abortions.
There is a legal raison d'être for the development of this method: it was deduced from the deliberation of the Supreme Court of the United States which states that the term "person" as used in the 14th Ammendment of the Constitution is not applicable to the unborn child, and that until the moment of birth it is possible to put an end to this child's life without incurring judicial action. On the other hand, the legislation of the various States all specify that during birth, when an infant has fully emerged from the mother's womb and shows even only the slightest sign of life, he or she is a person in the eyes of the law, so that, from the legal standpoint, to deliberately deprive the child of life would be homicide. On the other hand, it is legally permissible to kill this child during birth, on condition that the child still remains partially inside the uterus.
According to those who champion this method of abortion, it can be rapidly performed without hospitalization under a local anaesthetic. The abortion is preceded by a three-day preparation involving mechanical dilation of the cervix. The operation takes place in five stages: first, guided by ultrasound, the person carrying out the abortion, possibly after reversing the position of the fetus in the uterus, takes hold of the feet with forceps. He then draws the legs of the fetus from the womb causing the birth and extracting the baby's whole body apart from the head. Next, he makes an incision at the base of the infant's skull through which he inserts the point of a pair of scissors to puncture the cranium. A tube is then inserted through which the brain and the content of the cranium are sucked out. At this point, to conclude the abortion, the head, now reduced in size, is extracted and the dead infant delivered.
It seems that this technique was first used in 1979 as an alternative to the more usual technique for late-term abortions (which consisted in injecting the fetus with a lethal drug, extracting it and removing the limbs). A bill aimed at prohibiting partial-birth abortion was presented to the House of Representatives of the United States Congress on 14 June 1995. President Clinton made his opposition to it known on 28 February. Nonetheless, the bill was presented to President Clinton on 5 April; he vetoed it on 10 April. To overcome the presidential veto, Congress was asked for a two-thirds majority which was impossible to achieve at that time. To justify his veto, President Clinton, at a press conference on 10 April 1996, presented to journalists four testimonies of women who had been subjected to a partial-birth abortion. On 16 April 1996, eight American Cardinals and the President of the Bishops' Conference wrote to President Clinton expressing their "dismay" at the veto with which he had opposed the bill. In their letter, they warned the President of the risk of "moving our nation one step forward toward acceptance of infanticide", and denounced the spreading "culture of death" and mentioned the "recent decisions of the two federal courts of appeal seeking to legalize assisted suicide (or euthanasia)". In his response, President Clinton declared that he was prepared to sign the law if cases of risk to the woman's health were excepted, a way of reducing the effect of the law to virtually nothing. Subsequently, 27 million letters of petition from the faithful in all the dioceses of the United States piled up in the White House mail, protesting against the presidential veto.
On 20 September 1998, the United States Senate failed in a second attempt to overcome the presidential veto: 64 senators voted to pass the bill, but it would have taken three more votes to nullify the presidential veto. However, 24 States had already equipped themselves with legislation to prohibit the procedure locally. In October 1999, the bill banning partial-birth abortion was again presented to the House, but once again more votes - two - would have been needed to pass it. Finally, on 29 June 2000, the Supreme Court of the United States decreed with a decision of 5 votes to 4 that the law of the State of Nebraska that prohibited the procedure was unacceptable.
This once again called into question all laws of that kind which had previously been accepted by the different States. Following the decision, federal judges nullified laws preventing the practice of partial-birth abortion in the States of Michigan, Illinois and Wisconsin. In September 2001, Ohio saw its own law blocked by another federal judge.
With the change in the White House administration, a reversal of the situation might have been expected. However, such a reversal did not occur because the Republican Party was a minority in Congress. Moreover, after 11 September, American politicians have had other concerns deemed more urgent. In spite of this, the number of partial-birth abortions performed in the United States has increased from 650 in 1996, to 2,200 in 2000. This is 0.17% of all legally-performed abortions.
After the majority in Congress was recently overturned, a new bill was presented to the House of Representatives on 19 June 2002, destined to circumvent the decision of the Supreme Court of 29 June 2000 to forbid its use. The House Judiciary Subcommittee approved the bill on 11 July 2002, and the House of Representatives approved it by a vote of 274 to 151, with the support of 65 Democrats. This was the fourth time that the House of Representatives had approved a bill forbidding the procedure of abortion in the last months of pregnancy. With the change of the majority leader of the Senate in November 2002, this bill was presented to the Senate. President Bush, in a declaration he made on 22 January 2003, vigorously invited Congress to vote for the new law and reiterated this message in his State of Union Address on 28 January. This time the bill passed the examination of the Senate Committee on 31 January. The senators introduced the bill, which became "S.3", into Senate discussion on Thursday, 13 February 2003, and the debate started on 11 March. That same day, President Bush once again expressed his strong support for this law. The United States Senate approved the bill on 13 March by a 64 to 33 vote, thereby ending a debate that had lasted for eight years.
In certain interventions this debate revealed an extreme anthropological impoverishment with regard to the human embryo as well as arbitrary and permissive attitudes. Whereas some U.S. States permit abortion until the 10th week, others permit it until the 12th week, and still others, until the 13th. One might say with Pascal: "Truth on this side of the Pyrenees, error on the other!" (Pensées, V, 294). The outside limit of the possibility for abortion thus appears not to be birth but complete birth. The whole business affords an insight into how the consequences of juridical positivism sooner or later leads to the inconsistency of capricious, overbearing arbitration, and how the impositions of arbitrary power prevail over common sense and calm judgment, preventing recognition of the most important of the fundamental human rights, the right to life of every human person. Indeed, this is also a right of the unborn child.
In spite of all this, the truth, with difficulty, is making headway. We are facing a moment of lucidity on the part of legislators when it is actually dawning on them that the perpetration of such a tremendous and brutal crime against human dignity can no longer fail to provoke the reaction, hence sanction, of the juridical order. In this regard, it is imperative to point out the different attitudes of President Clinton and President Bush in the whole of this saga.
The recent voting of the North American Senate does not only represent a legislative event of considerable importance in the construction of a culture of life, but also implies the affirmation of a new attitude in legislators that stems from a gradual, slow but authentic, change in mindset among the people of the United States. Over and above certain elements in which the Senate's attitude continues to be linked to the burden of recent policies (the declaration that Roe vs. Wade was "appropriate", and that this law is not intended to be against the "right" to abortion or the exception made with regard to the eventual juridical legitimacy of practices resorted to when the mother's life is at risk), the recognition of the fact that partial-birth abortion is a brutal and atrocious practice which fully deserves to be called a crime and penalized by law is highly significant.
Previously the Americans' feeling of horror at this barbaric practice, whose cancellation was initiated by the United States Senate on Thursday, 13 March, met with strong legal resistance, especially in the Supreme Court, and finally, at least twice, in the veto of President Clinton, who considered it appropriate to accept divergent views. This time, on the other hand, there is a good chance that the bill will cross the threshold of broad consensus among the legislators of the House of Representatives. Moreover, President Bush's clear determination not to oppose the veto this time is well known.
The arguments contributed by each of the parties at various stages in the debate have remained more or less the same. The main argument used in previous legislative attempts to oppose the prohibition of this form of abortion, that is, the fear that the measure might end by being expressed in a deterioration of women's rights, has not, on this occasion, obtained more than minimal consensus. Indeed, few still believe that women's rights would be damaged if the partial-birth abortion of children of more than 20 weeks in the womb and even only a few weeks from birth were to be banned by law.
In this regard, the culture of life is making obvious headway. Day by day, the conviction is growing that there is a deep harmony between the value of life and the dignity of the woman: not only are the right to life and women's rights not incompatible (as, instead, a certain radical femminism postulates), but they are even closely linked. Indeed, they are both based on the same natural law. Believers recognize that this natural dynamic of rights and duties ultimately originates in God.
The harmonious perception between the right to life and women's dignity, which is at the root of the prohibition of partial-birth abortion, implies slow but real progress in the perception that a natural law exists. The most acute sensitivity to the right to life of every human being is a manifestation of this perception: this sensitivity is situated in an ensemble of values of respect for the environment, for nature, and first and foremost, for human rights. This sensitivity, this conviction, must penetrate the world of politics, the State and international institutions, as well as of society and culture.
In his speech on 5 October to the General Assembly of the United Nations, with regard to the Universal Declaration of Human Rights that was compiled after the disasters of the Second World War, the Holy Father declared that human rights (the right to life is the basis of all the other rights) are rooted in the nature of the person and reflect the objective and indispensable demands of the universal moral law; these rights "also remind us that we do not live in an irrational or meaningless world. On the contrary, there is a moral logic which is built into human life and which makes possible dialogue between individuals and peoples. If we want a century of violent coercion to be succeeded by a century of persuasion, we must find a way to discuss the human future intelligibly. The universal moral law written on the human heart is precisely that kind of "grammar' which is needed if the world is to engage this discussion of its future". How can humanity find it so difficult to understand this "grammar", such that it has taken so long to ban partial-birth abortion?
The persistent infliction of so brutal a form of death penalty on an innocent child is explained by the presumption that the child is not a "person" until his or her birth is complete. But doesn't this arbitrary, capricious use of the term "person" perhaps reveal a real contradiction to the most obvious postulates of "moral logic"?
If partial-birth abortion is banned in the United States by the House of Representatives (as everything seems to indicate it will be), we will be witnessing a true step ahead, not only of the culture of life, but also of a legal discipline more in tune with it that is rooted in a deeper understanding of the prerequisites of human dignity and in a more refined perception of the deep harmony between the right to life and the dignity of the woman.
This was presented to the public in 1993 by Dr Martin Haskell of Dayton, Ohio.
This legislation, defined as the Partial-Birth Abortion Ban Act [H.R.-1833], proposed by Representative Charles Canady and by Senator Robert Smith, was approved by both Houses on 3 January 1996.
President Clinton admitted in this letter that the procedure had something shocking about it: "The procedure described in H.R.-1833 is very disturbing, and I cannot support its use on an elective basis, where the abortion is being performed for non-health related reasons and there are equally safe medical procedures available". However, the President added that there are rare cases in which, as a medical option, the procedure can be necessary "to save a woman's life or to preserve her health".
This letter says: "Dear President Clinton, it is with deep sorrow and dismay that we respond to your April 10 veto of the Partial-Birth Abortion Ban Act. Your veto of this bill is beyond comprehension for those who hold human life sacred. It will ensure the continued use of the most heinous act to kill a tiny infant just seconds from taking his or her first breath outside the womb.... Mr. President, your action on this matter takes our nation to a critical turning point in its treatment of helpless human beings inside and outside the womb.... It moves our nation one step forward toward acceptance of infanticide". President Clinton's arguments concerning the need to permit the procedure of partial-birth abortion in certain dramatic cases were rejected: "Most partial-birth abortions are done for reasons that are purely elective", and it was specified that permitting late-term abortions for "health reasons" implies unlimited acceptance of all requests for abortion.
John Paul II, Address to the 50th General Assembly of the United Nations, 5 October 1995, n. 3; ORE, 11 October 1995, p. 8.