WASHINGTON – When Douglas Johnson, lobbyist for the National Right to Life Committee, first heard a description 14 years ago of a midterm abortion procedure, he felt a sense of revulsion and saw an opportunity.
He was convinced that if most Americans knew about it, they would think differently about abortion.
Johnson and a congressman coined a name for it: “partial-birth abortion.” The anti-abortion group obtained and widely distributed a set of line drawings that illustrated the procedure. Johnson said he thought “the reaction of many Americans to seeing a drawing of this would be to say: ‘This can’t be legal.’ “
Whether that procedure, known medically as “dilation and extraction,” or D&X, will be legal comes before the Supreme Court today, the day after the midterm elections.
With two new Bush appointees on the court – one replacing a justice who supported abortion rights – Johnson and other abortion opponents are optimistic that, for the first time, the court may uphold an outright ban on an abortion method.
The campaign against the procedure has succeeded where other attacks on abortion failed.
By branding it gruesome and unnecessary, Johnson won broad support for a criminal ban, even from lawmakers who usually vote in support of abortion rights. He tapped into public discomfort with abortions late in a pregnancy; polls have shown that, by a ratio of more than 2 to 1, Americans believe abortion should be illegal in the second trimester.
A win for Johnson and abortion opponents would chip away at the court’s 1973 decision in Roe v. Wade, which held that women have a constitutional right to choose abortion in the first six months of pregnancy.
Those fighting a ban argue that the disputed procedure is sometimes the safest method for aborting a fetus in midterm and, despite the attention it receives, not commonly used.
Johnson, 55, first heard about it in 1992, when someone mailed an Ohio doctor’s account to his organization. In the procedure, performed in the fifth or sixth month of pregnancy, the fetus is pulled partway out of the dilated cervix and the skull punctured to collapse it, allowing the fetus to be removed intact from the uterus.
Working out of a small Washington office, Johnson tried to shift the focus of the abortion debate from the rights of pregnant women to the fetuses. He walked the halls of Congress with a briefcase that contained a plastic model of a 20-week-old fetus that he used to make his case.
Twice in the 1990s, Congress passed bills to outlaw D&X except in cases where the woman’s life was at stake, but President Clinton vetoed them. He said he would sign such legislation if lawmakers added an exception for when the procedure was needed to preserve the health of the woman.
Abortion opponents refused. They distrusted health exceptions, believing they would render a ban meaningless. Roe v. Wade defined health to include emotional, psychological, familial and age factors.
Based on language drafted by Johnson’s office, 30 state legislatures had enacted bans by the late 1990s.
In 2003, President Bush signed the Partial-Birth Abortion Ban Act without an exception for health concerns.
It’s not clear that the ban would affect many abortions. Only 1 percent or 2 percent of abortions take place after the 20th week of pregnancy.
Of these, about 3,000 to 5,000 per year are done with D&X. Doctors say a small percentage of those are done because of medical complications or fetal deformity.
Johnson put the abortion rights movement on the defensive. Its leaders argue that abortion has been and should remain a private matter between a woman and her doctor.
They also say there is something profoundly illogical about a ban on one method: If abortions are legal at the 20th week of pregnancy, why forbid doctors to use a method that might be the safest?
” ‘Partial-birth abortion’ is a political term. It’s about generating public outrage. It’s not a medical term,” said Dr. Deborah Oyer, a Seattle physician who does midterm abortions but not the D&X procedure. She said she resents legislators trying to regulate the practice of medicine.
Six years ago, the Supreme Court struck down Nebraska’s ban on the procedure. The 5-4 majority, which included now-retired Justice Sandra Day O’Connor, said the ban violated a woman’s right to abortion because it did not include a health exception.
Dr. Leroy Carhart, of Bellevue, Neb., had challenged the state law as unconstitutional. During a two-week trial, Carhart and several medical experts testified that the D&X procedure was sometimes safer because there was less risk of bleeding and infection.
“Where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health,” the government cannot ban it by law, the court ruled in Stenberg v. Carhart in 2000.
When Congress took up the issue, many of its members were in a defiant mood. They declared that the method, which they described as “gruesome and inhumane,” was “never medically indicated to preserve the health of the mother.”
Carhart sued to challenge the law, and lower courts blocked it from taking effect. Today, the high court will debate the case, Gonzales v. Carhart.
The replacement of O’Connor with Justice Samuel A. Alito Jr., a conservative Catholic, has many legal experts thinking the court might uphold stricter regulation of abortion. In Gonzales v. Carhart, the court must first confront the precedent it established in the Nebraska case. The justices also must decide whether to defer to Congress on its ban of the procedure, as requested by U.S. Solicitor General Paul Clement, or side with medical experts who testified in court.
After the bill became law, federal judges in San Francisco, New York and Omaha, Neb., conducted trials on lawsuits that sought to overturn it. They heard from doctors who teach in medical schools at Cornell, Yale, Columbia, Northwestern, the University of Pittsburgh and the University of California, San Francisco.