WASHINGTON -- The nation's first federal ban on a form of abortion cleared its final hurdle in Congress yesterday, when the Senate voted, 64 to 34, to prohibit a procedure labeled by the bill's sponsors as "partial-birth abortion."
But even as the bill heads to President Bush's desk, opponents are preparing to challenge its constitutionality with three separate lawsuits, each seeking to prevent the measure from going into effect. They must act quickly, because the bill will become law at 12:01 a.m. the day after Bush signs it.
The legislation, which cleared the House three weeks ago, would make it a crime, with a potential two-year prison sentence, for a doctor to deliberately kill "a living fetus" that has been partially removed from a pregnant woman's body. The bill provides an exemption to protect the life, but not the health, of the mother.
The bill's supporters insist it applies only to a single gruesome procedure that has no medical justification. Opponents argue that the measure will outlaw common and safe forms of midpregnancy abortions often prompted by valid medical reasons.
Deciding who is right will be the primary challenge for the courts reviewing the new law's constitutionality.
Antiabortion activists estimate that the ban will apply to fewer than 5,000 procedures a year. But opponents of the bill say it could have a broader impact, potentially outlawing 140,000 abortions performed after the first trimester.
In final negotiations over the bill, the lawmakers dropped a section from an earlier Senate version that would have expressed the view that the Supreme Court's decision in 1973 in Roe v. Wade, the first to recognize a constitutional right to abortion, "was appropriate . . . and should not be overturned."
The coming lawsuits "will pose the question: Does the Constitution really guarantee a right to deliver a premature infant to within inches of complete birth and then kill her?" said Douglas Johnson, legislative director for the National Right to Life Committee, an antiabortion group that played a central role in promoting the ban passed by Congress. Johnson's group has lauded the ban as "the first direct national restriction on any method of abortion since the Supreme Court legalized abortion on demand in 1973."
But an abortion rights supporter said the ban "will bring an end to providing the best and safest health care for women."
"This dangerous ban prevents women, in consultation with their families and trusted doctors, from making decisions about their own health," said the supporter, Gloria Feldt, president of the Planned Parenthood Federation of America.
With the bill due to take effect less than a full day after it becomes law, "we have a very small window" for an attempt to block it, said Talcott Camp, the lead attorney for the American Civil Liberties Union in a case to be filed on behalf of the National Abortion Federation and individual doctors.
"We are determined to protect women's health and the constitutional rights of women and their doctors," she said.
President Bush is traveling in Asia. He is scheduled to be in Hawaii on Friday and return to Washington on Saturday.
The measure is similar to, but somewhat more detailed than, a Nebraska state law that the Supreme Court struck down by a 5-4 vote three years ago. That ruling had the practical effect of restricting use of the procedure in some 30 states. Up to that time, Congress had been trying unsuccessfully for eight years to enact a similar proposal at the federal level.
In drafting the new national measure that has now passed, Congress wrote lengthy findings that contradict the Supreme Court's conclusion that abortions using the procedure banned by the bill are sometimes medically necessary to protect a woman's health.
"Congress finds that partial-birth abortion is never medically indicated to preserve the health of the mother," the bill's preamble says.
In passing the measure, "Congress is now inviting the Supreme Court to reexamine that extreme and inhumane decision," Johnson of the National Right to Life Committee said of the court's ruling in the Nebraska case in 2000. For more than eight years, abortion foes have been attempting to get a national ban through Congress. Lawmakers passed two earlier bills, but they were vetoed by President Clinton. With Bush already committed to the new measure, it seems sure to become law, perhaps by the end of this week.
Lawyers for three abortion rights groups are now working out the final form of complaints that are to be filed promptly, probably in federal courts in Nebraska, California, and New York. "We are looking at every possible way to get an injunction in place before this takes effect, so there's no gap" in protection for abortion rights, said Eve Gartner, a senior staff lawyer for the Planned Parenthood Federation of America who will file a lawsuit for the federation and its 125 affiliates.She and other abortion rights lawyers said that the legal challenges may begin even before Bush has signed the measure.Priscilla Smith, legal director for the Center for Reproductive Rights, planned to file the third lawsuit in a federal court in Nebraska, on behalf of Dr. Leroy Carhart, a Bellevue, Neb., doctor who won the 2000 Supreme Court ruling nullifying that state's ban. Smith said the challenges are expected to argue that the bill has no medical exception, even though the Supreme Court has said that one is necessary, and that the wording of the ban is so broad "that it would ban the safest method used in the second trimester and thus would impose an undue burden on the rights of women." Those were the two key points in the Supreme Court's 2000 decision, "and this bill suffers the same two defects," said Camp of the ACLU.The new measure begins with a congressional assertion that there is "a moral, medical, and ethical consensus that the practice of performing a partial-birth abortion . . . is a gruesome and inhumane procedure that is never medically necessary and should be prohibited." It defines "partial-birth abortion" as "an abortion in which the person performing the abortion 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."
Conviction of the crime of performing such an abortion can lead to a fine, a prison term of up to two years, or both. The measure also allows the father, if married to the woman who has the procedure, and the parents of a woman who has the procedure when she is under 18 years old to sue the doctor for damages for any physical or psychological injury and seek added damages equal to three times the cost of the abortion.
A briefing paper on the new bill prepared by the Center for Reproductive Rights contends that the measure will prohibit dilation and extraction, a method that may be performed as early as 12 weeks into pregnancy, involving the removal of at least some fetal tissue using instruments other than vacuum suction.