In the spring of 2004, tens of thousands of people came to Washington, D.C., for a so-called "March for Women's Lives." Organizers explained that their purpose was to protest the new threats to "choice," chief among them, the ban on partial-birth abortion.
Hollywood celebrities like Whoopi Goldberg were on the roster, as were a long list of "Honorary Congressional Co-Sponsors" such as Barney Frank and Barbara Boxer. Senator John Kerry aired a special campaign commercial that week promising to defend "the right to choose" and even hosted a "pro-choice" rally before the march.
As the preparations to defend "choice" reached a crescendo in Washington, court reporters in federal courtrooms across the country were quietly recording testimony about what that bloodless word really entails.
The Partial-Birth-Abortion Ban
In November 2003, President George W. Bush signed the Partial-Birth Abortion Ban Act, which outlaws partial-birth abortion except where "necessary to save the life of a mother."1 This law defines partial-birth abortion as "an abortion in which the person performing the abortion-(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus." Violation of the law subjects an abortion doctor to fines and possible imprisonment up to two years, or both.
This is a most modest limitation on the otherwise unlimited right to abortion. But no prosecutions have been launched under it, because-immediately upon its enactment into law-the giants of the abortion lobby filed suit. The focus of this article is the trials that ensued.
Never in the years since Roe v. Wade has such extensive evidence about the practice of abortion been placed in a public record-and it has been placed there by abortion doctors themselves.
When partial-birth abortion was first discussed in public, many people refused to believe it existed. Some in the "pro-choice" movement even accused the pro-life movement of fabricating it. Yet it was no fabrication: Dr. Martin Haskell discussed the procedure in detail at a 1992 conference of abortion providers in Dallas, Texas, titled, "second Trimester Abortion: From Every Angle."2 His paper stated that he "routinely performs this procedure on all patients 20 through 24 weeks LMP"3 and uses the procedure through 26 weeks "on selected patients."4
As Dr. Haskell's description of the procedure became more widely known, and the existence of partial-birth abortion could no longer be denied credibly, proponents of the method made new claims. They claimed it was extremely rare, or used only in emergencies, or that the baby is already dead when it is performed. But these claims, too, collapsed in the face of investigative reports by the American Medical News,5 the Record (Bergen, NJ.),6 and others.7 In fact, in 1997 the Executive Director of the National Coalition of Abortion Providers admitted publicly that the method was actually common, not rare, and that the vast majority of these abortions are done on a healthy mother with a healthy fetus that is 20 weeks or more along.8
Despite these admissions and revelations, abortion activists continued their public-relations campaign to cast partial-birth abortion as a rare, emergency procedure, and a necessary part of the virtue of "choice"-a virtue to be protected against politicians who would intrude between a woman and her doctor (and, where politically expedient, "her god").
When the Partial-Birth Abortion Ban Act was signed into law, Planned Parenthood, the National Abortion Federation, and a number of abortion doctors aided by the American Civil Liberties Union challenged its constitutionality in federal lawsuits filed in New York, Nebraska, and California. …