On November 5, President George W. Bush signed into law the Partial Birth Abortion Ban Act of 2003, the first direct national restriction on any method of abortion since the infamous Roe v. Wade decision in 1973. Twice before, in 1995 and 1997, Congress passed similar legislation, but President Bill Clinton vetoed the bills.

Almost before the ink was dry after President Bush signed the new ban, however, a federal court in Nebraska ruled it unconstitutional. Within days, two other federal courts followed suit. This lightning-quick action by the courts raises several questions. Is the law unconstitutional on its face? What effect, if any, would the law have on the current practices of the abortion industry? Why did the courts act so quickly to prohibit enforcement of the ban?

Why All the Fuss?

Unlike most types of abortions, partial-birth abortions are performed relatively late in a woman's pregnancy. It is a common misconception that a partial-birth abortion can only occur when a child is near full-term, however. In fact, most partial-birth abortions are performed in the fifth and sixth months of pregnancy (20 to 32 weeks pregnant).

Moreover, by most estimates, partial-birth abortions account for only a small percentage of the total abortions performed annually. According to the abortion industry's own figures, partial-birth abortions number between 2,000 and 5,000 per year, while 1.3 million total abortions are performed each year in America.

Despite the modest numbers of partial-birth abortions performed annually, the controversy surrounding the Act has been enormous. The pro-abortion forces see the move to ban partial-birth abortions as a significant intrusion on a woman's so-called right to choose. They also see the political efforts to pass the ban as an effort to sway public opinion against abortion rather than a genuine attempt to protect women or children.

History of Partial-Birth Abortion

Partial-birth abortion is a relatively new procedure. It was largely unknown prior to the discovery in 1992 of an instruction paper on how to perform it written by abortionist Martin Haskell of Ohio. The outcry over the gruesome details of Haskell's method led to a series of highly publicized congressional hearings investigating the procedure. One witness, Brenda Pratt Shafer, was a nurse who assisted at an abortion clinic and witnessed a partial-birth abortion first-hand. Her description of the process was electrifying. She testified that the instant she saw the baby's body go limp from the procedure, she switched from being "pro-choice" to pro-life. She walked out of the clinic that day and never returned.

In a nutshell, a partial-birth abortion typically involves an abortionist reaching into the uterus, grabbing the unborn baby's leg with forceps, and pulling the still-living baby into the birth canal, except for the head, which is deliberately kept just inside the womb. The abortionist then sticks scissors into the back of the baby's skull and spreads the tips of the scissors apart to enlarge the wound. He then removes the scissors, inserts a suction catheter, and sucks the baby's brains out. The collapsed head is then removed from the uterus.

Although the previous federal partial-birth abortion bills failed to become law, several state legislatures did enact bans on the procedure.  One of those states was Nebraska. The Nebraska partial-birth abortion law ultimately made its way to the United States Supreme Court where, in June of 2000, the Court struck the law as unconstitutional in a sharply divided 5-4 decision. In particular, the Court found Nebraska's law -- which was modeled after the unsuccessful congressional bills -- failed to include an exception for the health of the mother.

The Court also found that Nebraska's ban reached too broadly, banning not only the "dilation and extraction" procedure, which could be banned constitutionally, but also the "dilation and evacuation" method, which could not be banned.

What the Act Does