The ban on so-called partial-birth abortion is all talk and no teeth. And it has created a weird middle ground in an otherwise polarizing debate.
"The devil himself would have signed this bill," says the Rev. Flip Benham, national director of Operation Save America/Operation Rescue. "This piece of legislation will not save the life of one child."
The law bans an "overt act" that "will kill the partially delivered fetus."
Signed by President Bush last Wednesday, the law faces federal court challenges in San Francisco, New York City, and Omaha, Nebraska. Temporary restraining orders have been won in all three states to prevent the law from going into effect.
Supporters of abortion rights are confident the courts will eventually nullify the law, because of the outcome of another court case. The US Supreme Court struck down a Nebraska abortion ban in 2000 because it failed to contain a health exception for the mother and placed an "undue burden" on a women's right to choose.
The Partial Birth Abortion Ban Act of 2003 likewise does not contain a health exception.
Health can be defined broadly, says Anne LeBlanc, president of Rochester-area Right to Life. That definition may include a woman's financial health, the health of her relationships, and so on.
"If you have a health exception, you have abortion on demand," she says.
So, why pass a law that will likely never take effect? Some say it's worth it simply for the political mileage: an opportunity for Bush, heading into an election year, to appease the Religious Right.
But the real victory for the anti-choice movement may be in the court of public opinion: beginning the process of turning public sentiment against abortion in its entirety.
"It's a step in the right direction, just to get women to think about their alternatives," says LeBlanc. "It gives a lot of people a little bit more to think about."
"Partial-birth" abortion, as a medical term or practice, does not exist. Intact D&X (dilation and extraction) is the procedure most clearly targeted by the ban. It is undeniably grisly: the fetus is partially delivered and the skull is collapsed after removing the contents of the brain.
"These things are all distasteful procedures, but the truth is, anything in the second trimester is very distasteful, which is why a small percentage of physicians who do abortions actually even do them in the second trimester," says Dr. Morris Wortman, a Brighton abortion provider.
The American Medical Association asserts that there is not any identified situation in which intact D&X is the only appropriate procedure to induce abortion, and recommends that it not be used unless alternative procedures pose "materially greater risk to the woman." That being said, however, the AMA says the physician must retain the discretion to make that judgment, "acting within standards of good medical practice and in the best interest of the patient."
The AMA has come out against the ban. A written statement issued by the organization reads that the AMA "has long-standing policy opposing legislation that would criminalize medical practice or procedure."
In other words, Congress does not belong in the doctor's office. Pro-choicers worry that doctors will be in the position of having to choose between a patient's health and criminal charges.
Abortion-rights supporters also worry that the law's language is too vague and could be interpreted as prohibiting other forms of abortion, as well.
"I think it'd be great if it did," says the Rev. Mike Warren, of Rescue Rochester. "That's going to be brought into the courts. I believe it should be applied [to other procedures] and hopefully, it would be applied in that way."
Besides being a powerful symbolic victory, Warren says, the ban galvanizes the anti-choice movement and divides the pro-choice movement from within, because many pro-choicers, he says, find intact D&X reprehensible.
"Practically," Warren concedes, "it's not going to stop a lot of abortions, because there's a lot of loopholes."
Almost 90 percent of abortions happen in the first trimester. The average person thinks, incorrectly, that so-called partial-birth abortions take place in the third trimester, Wortman says.
"My understanding is that it's usually done after 16 weeks and I think they probably go to 20 weeks," he says.
The law does not address the gestational age of the fetus.
Abortion-rights supporters say the anti-choice movement encourages people to equate so-called partial-birth with late-term abortions to confuse the issue and to make the procedure seem all-the-more gruesome.
Wortman does perform mid-trimester abortions, but not D&X. It bothers him, he says, that some women use mid-trimester abortions for convenience or because they've put off making a decision. But there are justifiable reasons, he says, for keeping it legal.
"You can understand a woman who is pregnant and then at 15, 16 weeks finds out her husband's having an affair or walks out on her. You can understand finding out your kid has an anomaly," he says. "There's nothing good about mid-trimester abortions. I understand why they're necessary to the point that I provide them."
Wortman doesn't understand why intact D&X has come under assault, when other methods of mid-trimester abortion are just as grisly.
"They're all distasteful after 16 weeks. The reality is, you do see arms and legs. You do see fetal parts. It's very recognizable," he says. "Ninety-nine percent of the public who saw it, who were unaccustomed to seeing this thing, would find it extremely disturbing."
The ban, Wortman says, is an empty law because there are many ways around it, such as injecting a drug into the fetus which causes it to die before removal, or severing the umbilical cord prior to delivery.
"The major sponsors of the bill probably know this," Wortman says. "The point is, when you allow the pro-life element to come out and act stupid and really take aim at a bill that is not going to have any effect, you force pro-choice individuals to take a position that they don't even want to be in. Because, frankly, the majority of pro-choice individuals don't want to be in the position of having to defend what is really a pretty reprehensible procedure. So, what we have is a fight at the margins of abortion laws."
The ban is a direct assault on Roe vs. Wade, some say. Others argue it won't impact Roe at all. Still others say the ban is successful in "chipping away" at the 1973 Supreme Court decision, which prohibits states from banning abortion outright.
"It's death by a thousand papercuts," says Steve Aronson, director of external affairs and communications for Planned Parenthood. "It reframes the debate. It stops being a woman's privacy that matters. People start thinking the government has a role.
"Abortion is a private decision made by an individual," he adds. "If a woman can't control her fertility, there's not much about her own life she can control."
Every time a new challenge is brought against abortion, Aronson says, it has the possibility of driving physicians who perform abortions to stop, deeming it not worth the hassle or potential risks.
Dr. Eric Schaff, chair of the National Abortion Federation, goes so far as to say the ban is a full-on attack against Roe.
"If this were to pass," he said before Bush signed the law last week, "it would overturn Roe vs. Wade, because there's no exception to the women's life and health. So, that's a major dilemma for the whole country. It's not chipping away. This is a major assault. They'd have to remove Roe vs. Wade from the books. And people have to understand that."
Wortman, by contrast, says the ban won't overturn anything.
"Quite honestly, I think there's hysteria on both sides of this issue," he says. "I think the Right thinks that they somehow have a bill here that's really going to be effective in overturning Roe, which the intelligent people on the Right realize it won't be. That's matched by some hysteria on the Left, that thinks this is a frontal attack."
The real question, Wortman says, is what is Congress doing telling doctors which procedures they can or cannot use?
Individual states regulate physicians in this country, Wortman says, "so again, what's the federal government doing regulating practices that really otherwise are adjudicated to the state?
"It's a very dangerous precedent," he adds. "And it's one that I'm very confident over time won't stand."
Contrary to Aronson's remarks, Wortman says the ban won't drive physicians out of the abortion business.
"You're talking about a group of abortion providers that does them in the second trimester," he says. "These are people that are pretty committed. So, this law is not going to chase anybody away."