The US Partial Birth Abortion Ban: Semantics, Science and Secularism

It is not something feminist activists in my own neck of the woods will choose to ignore. (I hope) In the past few weeks, the internet (and our emails) have been all abuzz about the US Supreme Court's (Gonzales vs Carhart) ruling which upheld a Federal Law (The Partial Birth Abortion Ban Act 18 USC 1531), which makes outlaws so-called "partial birth abortions," and imposes penalties on the physician who performs it, outside the exception of saving the "mother's" life.

This is the provision in question:

"(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the enactment.

(b) As used in this section—
(1) the term ‘partial-birth abortion’ means 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;"

While, in our own (Philippine) jurisdiction, an archaic penal law imposing sanctions on all intentional abortions still exists, it wasn't a surprise (from here) to witness the strong reactions (from both sides) on the US Supreme Court ruling. As the debate raged on, last week, Mexico, a predominantly Catholic country announced its legalization of abortion.(I'll write about this later).

I suppose even as abortion remains a challenge to talk about in our own context (and believe me to many, I know that this is potentially the understatement of the year), I suppose we have all wondered about how all this will affect us in the long run. (Or maybe some have wondered whether in light of Kris Aquino’s revelation about having been near death after her delivery, she was nearly a candidate for this “procedure.”)

In the Philippines, it doesn't exactly take a lawyer, a legal scholar, or for that matter a freshman law student to have at least some vague familiarity with "Roe vs.Wade," the Supreme Court ruling which made abortion within the first trimester of a pregnancy a legal option for women in the US, respecting it as the "right to privacy." (I'm fairly certain its because there was a Hollywood movie starring Holly Hunter in 1989 about it.)

According to legal scholars and experts from the Center for Reproductive Rights the decision effectively overturns over thirty years of precedent and "paves the way for state and federal legislatures to enact additional bans on abortions as early as 12 weeks, including those that doctors say are safe and medically necessary."

Sifting through the Semantics and Science behind the Legal Case

Of course if you are not somebody who has been closely watching and monitoring this "debate" about partial birth abortion bans (and similar legislation), or for that matter, too engrossed in what is in many ways, our own "worse" context of over 473,000 abortions a year, majority of them clandestine largely due to the restrictive law, it is likely that the issue has managed to confuse further.

Reading the text of the law shows that there is a legal exception which does seem to allow the procedure if there is any physical threat to the mother. Doesn’t this mean that abortion is still legal anyway and that the only thing they seem to be prohibiting here is this particular “partial birth” type of abortion?

Now from a closer reading of the law’s provision, the definition of partial birth abortion is in every sense particularly graphic, describing a “living fetus” and “an overt act” (other than completion of delivery) that will “kill” the fetus.

There of course lies the entire crux of the matter. The graphic language which for some whose only reference regarding abortion are scenes out of “The Silent Scream,” is likely enough to cause flashbacks of the same propaganda material, and the even the (not at all on the sly) reference to the woman as “the mother,” is what makes this particular piece of US legislation as a definite “sign” of the times.

The US Supreme Court ruling is verily a testament to this day and age’s ideological and moral battles, being waged through words, but of course with very real-life, consequences.

In her blogpost about the ruling, Gloria Feldt calls our attention to what ought to be the heart of the matter when discussing this Supreme Court ruling: “There is no such thing as partial birth abortion. The term will be found in no medical book.”

She writes:

“It was made up in 1995 by Douglas Johnson, legislative director for the National Right-to-Life Committee, and former U.S. Representative and current Florida appeals court judge Charles Canady explicitly to confuse, horrify, and deceive—to manipulate language with the intent of sensationalizing the abortion debate. In particular, they intended to take the focus away from the woman and place the attention and the greater value on the fetus instead. The leading medical associations all agreed this was a misleading term, but the media never checked their language and by 2001, 90% of articles were using the term without so much as a "so-called" attached.

As I reported in my 2004 book The War on Choice, an AP managing editor admitted when challenged that "partial birth abortion" was emotionally loaded, but said they continued to use it because it was instantly recognizable. Another major daily newspaper editor admitted it wasn't correct but said it was easier to use than alternatives.”

The next logical question (albeit apparently a tad naïve for a lot of other pro-choice advocates who don’t bother to explain much) is “If there is no such a thing, why create a law about it in the first place?”

The answer to that question however is simple. By banning the non-existent procedure it leaves doctors very uncertain what exactly is being prohibited. The other side of this of course is that it leaves them unsure of what is allowed as well.

Fortunately for the US Pro Choice movement, Paula Hillard of Physicians for Reproductive Choice & Health points out that “Ultimately, this decision won't change the need for abortion in America, or the desire of pro-choice physicians to care for our patients based on the best medical evidence.”

In our own context, sympathetic doctors only know too well how legal restrictions (not even just the penal law on abortion itself) have a “chilling effect” on the provision of perfectly safe, and humane medical care such as sterilization and modern contraception. It certainly didn’t even take a law and actual ban but a mere Executive Order and policy pronouncement in Manila by the Pro-Life Mayor to eliminate family planning from the city’s health services. That same order just utilizes the word “discourage.” (This is another topic I promise to write about later and it promises to be interesting since as a lawyer, it’s the closest I have come to ambulance chasing)

But without delving into the rudiments of comparative criminal law (that is, comparisons between US Federal law and our local laws), there is a principle in penal law that requires the law to be specific about the “act penalized.”

In fact it is in US jurisprudence that we often look to in the particular examples of vagrancy laws having been struck down because they were held in violation of the constitutional right to “due process” for being too vague.

In this law, the penalized act is: “performing an overt act that the person knows will kill the partially delivered living fetus,” which is clearly not very specific.

What is that overt act which the doctor knows will kill the fetus? Apparently, even the doctors are at a loss. To many doctors, even if the decision itself describes the covered “procedure” as “intact dilation and evacuation,” it is still too vague in that it still sounds like any other legal abortion procedure.

Lessons to be Learned from the Word Wars

Indeed, while the stark contrast between the US and the Philippines is what is remains obvious (after all, abortion is still legal in the US and prohibited in the Philippines), there are a few instances in which “word wars” the makings of which in my mind, run parallel to the “partial birth abortion” myth, first peddled by media, and culminating in the Gonzales vs Carhart decision, in our own context.

At the risk of gaining the ire of my own comrades (my peeps, my colleagues and friends), some of the instances I recall may very well have been facilitated by our own camp’s haste in entrusting the settlement of these issues “in law,” or “legal terms.” I make these comments in an invitation to engage in constructive self-criticism.

One particular case that comes to mind was the early draft of the “reproductive health bill” which among others, outlined criminal sanctions for various “violations” of reproductive health such the refusal to provide such services.

I have expressed my own misgivings about the “definition of penal sanctions” to ensure compliance with something like basic health care services elsewhere, or for that matter, on the over reliance on penal law, but in the course of the negotiation of this draft, a particular suggestion from our own ranks also arose as to defining an “exemption” from the criminal sanctions and thereby introducing the term, “conscientious objection,” to the draft bill.

Now “conscientious objection” is a term from US case law and while it was historically grounded on the principles of religious freedom and used in the context of objections to the military draft, it has since made its way into contemporary legal debates around abortion, contraception and a host of medical procedures found objectionable by various religions. As such, it has been readily used by a host of fundamentalists to seek legal protection from suit whenever they refused to take part in a medical procedure they claim their religion forbids them to participate in.

Of course I am all for religious freedom and in fact find that often, “our side” (if we were to call it that), isn’t talking enough about our varying visions and versions of religious and sexual morality.

But when I heard about the suggestion I advised against it because I felt that such a matter, “conscientious objection,” was far too complex to codify into any law. In fact I remember trying to assure those who were suggesting the inclusion of the term that our “religious freedom” clauses in the Constitution (the free expression, non establishment and separation of church and state provisions), were sufficient to carve out such an exception and protection, if need be.

A year later of course, it bit us in the hinny when a draft bill on “conscientious objection” was filed in Congress. The bill went as to so boldly define a right against “discrimination” by health service providers and medical professionals who refuse to perform the objectionable medical procedures.

As noble as it sounds, it is worth noting that in the context of the Philippines where the Catholic population is a majority, the “discrimination” therein defined and supposedly experienced by medical professionals is quite difficult to imagine. (Just like partial birth abortion). In fact, violations of patients’ rights are more often reported and discrimination against women in need of post abortion care (e.g. denying anesthesia, berating and even humiliation) is the more common horror story in every public hospital emergency room. (I wrote about this bill at length here in a post entitled: " Freedom and Good Faith: Dreaming up Democracy" 22 August 2006).

The problem of course is not that “fundamentalists are all wrong and secularists are right” on the question of contraception, abortion, when life begins or whether a fertilized egg is a human being. In fact, it is doubtful that even all secularists agree on one definite answer to those questions and I daresay, I have heard a host of differences from religious zealots as well. (Some we debated with in the past claimed sperm were living and we had to point out that meant masturbation is genocide but I digress.)

When couched solely in legal terminology, or legal “definitions,” many issues and ethical dilemmas are not articulated fully as the complex problems that they are in real life, involving real people with real feelings and belief systems.

In many ways, this is what the Gonzales vs Carhart decision has left us with, a law that further mystifies by privileging “fetus over woman,” making us think and imagine that one is alien from the other, as if they were in perpetual battle, and as if the fetus was totally independent from the woman’s body. The law as such, merges in vision with the popular anti-choice depiction of the woman seeking abortion as one who is selfish and cold blooded. A killer.

Certainly, when its Philippine media “talking” about the issue of abortion, most of the time the sin angle is always played up, bespeaking of the dominant Catholic hierarchy’s bias.

Yet in between the trenches of “pro-life and pro-choice” (we call them anti-choice, they call us anti-life), there are actually a lot of other positions and many of them not as set in stone and worthy of consideration. Even a lot of feminists in the Philippines have always been a bit “queasy” about making a public position on the issue, partly in fear of castigation from either side. Perhaps the Catholics among them are afraid of being outed as “pro-choice,” and still others even more afraid of co-feminists calling them “unfeminist” for not being categorical about their “abortion in limited cases” position.

In between these positions and the pro-choice position are surprisingly quite a number of points for agreement and if it were not for the black and white frame of the law (legalization OR prohibition), there would be space enough to discuss how legal prohibition in fact perpetuates more and more clandestine abortions and how legalization is not an agenda to carry out more and more abortions, but to ensure that women who make have made this often difficult decision (and many of them by themselves debating their own faith and beliefs about it) are not left to die.

As it is, the battle lines for the most part, always seem to have been already drawn out for us and we end up missing the opportunity to point out that usually the real difference between "us" and "them" is not about "when life begins" but fundamentally how we define freedom and how we live it.It is whether and how we honor another's freedom apart from our own.(Or is it?)

The more I read about the issue, the more I am convinced that apart from talking about pro-choice and pro-life, we ought to be talking about how we have been carrying out this debate all these years and how we ought to be completing the picture on the important things we have somehow been missing out on which is basically the human angle to this issue, the women themselves. This is perhaps a lesson in legal advocacy, which we can all heed.