Summary: Sen. Tom Daschle (D-SD) has circulated a draft proposal to replace the Partial-Birth Abortion (PBA) bill passed overwhelmingly by the U.S. House of Representatives. If read, as it must be, within the context of 24 years of federal court abortion decisions, the Daschle bill restricts no abortion on a viable unborn child and effectively incorporates the unlimited "health" definition from the Supreme Court's decision in Doe v. Bolton, 410 U.S. 179 (1973). The debate on this proposal should not be cluttered by the minutiae. The most important point is that the Daschle proposal says that abortions on viable unborn children will be allowed for all the unlimited "health" reasons under Doe v. Bolton for which late term abortions are currently performed.

1. The Daschle substitute is vastly different from the Partial-Birth Abortion bill. Congress held extensive hearings on the PBA procedure and the PBA bill, and the PBA bill was approved by the House and Senate in 1996 and recently re-affirmed by the House. The legal and medical reasons for the PBA bill, and its particular language, may not be applicable to the very different Daschle proposal.

2. Under the Daschle proposal, the abortionist would be the sole judge of the viability of the unborn child. Thus, the abortionist would decide when (and to what child) the language applies or does not apply. The proposal does not include any objective fetal viability testing requirement, such as the Missouri provision upheld by the Supreme Court in the 1989 Webster decision.

3. Because the Daschle proposal only applies at viability, it would not touch the partial-birth abortions that are occurring in the 5th and 6th months of pregnancy.

4. Two additional words render the Daschle amendment meaningless and unenforceable. First, "certifies" means nothing more than "to assure," and simply means that the abortionist signs a paper affirming that the condition in the amendment exists. In fact, the abortionist could simply check a box (next to that language) and sign his or her name. The proposal attaches no legal consequences to this certification. There is no requirement that any objective medical facts be cited to support the abortionist's subjective judgment.

   Second, although to the layperson, "risk" may signify a serious medical problem, in legal and medical terms it simply signifies the "chance" of an injury. A risk is a chance, nothing more.

5. "Grievous injury" under the Daschle proposal does not require any physical injury to the mother before the child's life can be taken, because it incorporates a physically unrelated element -- "an inability to provide necessary treatment" for a condition -- which is independently sufficient to justify the abortion on a viable child. This definition changes the issue from whether a physical health condition exists to whether there is a lack of medical equipment in a clinic or hospital. Given the state of abortion clinics in the United States, many do not have "necessary treatment" for "life-threatening conditions" that women may face, for example, from a botched abortion.

6. "Grievous" is often mistaken for "grave." "Grave" means serious or severe and is a standard medical term. "Grievous" is not a standard medical term and does not mean grave or serious or severe; it includes a meaning of "causing grief or suffering."

7. The "grievous injury" definition is abstract. It does not require that the inability to provide treatment be related to any clinically-diagnosable condition of the particular woman. It includes any chance of there being an inability to provide necessary treatment for a life-threatening condition for any woman. Thus, the abortion of the viable child can proceed if there is a chance of an inability to provide necessary treatment for a condition that a woman might, but does not necessarily, have.

8. When coupled with the "risk" language, the Daschle language loses all substance and enforceability. When read as a whole, the proposal allows an abortion of a viable child when the abortionist subjectively believes that the continuation of the pregnancy would have a chance of causing grief or suffering or would have a chance of there being an inability to provide necessary treatment for a life-threatening condition that a pregnant woman might conceivably encounter. Every pregnancy terminates one way or another, and every method of termination presents not merely a chance but the likelihood of pain (and suffering). Thus, the condition is presented by virtually every pregnancy.

9. The final sentence of the attached language reinforces the abstract nature of the "grievous injury" definition. The "medically diagnosable" phrase should not be taken to restrict any preceding language; it simply means that a doctor could form an opinion about a problem.

10. Likewise, the final reference to "any condition for which termination of pregnancy is not medically indicated" basically incorporates the Doe v. Bolton health definition, which is limitless. This language--and the entire Daschle proposal--would be read within the context of 24 years of federal abortion law, and, within that context, "medically indicated" has been used to mean the same thing as "health" within Doe v. Bolton -- encompassing any or no reason for which an abortionist might be willing to perform an abortion.

11. Consequently, the Daschle draft is entirely superfluous. The Daschle proposal states that abortions on viable unborn children will be allowed for all the "health" reasons in Doe v. Bolton that abortions on viable children are currently being performed. When the double negatives in the last sentence are noted, the last sentence says that "grievous injury" includes any condition that is medically diagnosable and any condition for which termination of pregnancy is "medically indicated." In a sense, these definitions (c) and (d) basically enlarge on definitions (a) and (b) and make "grievous injury" as broad as "health" in Doe v. Bolton.

12. Finally, there are no teeth if there is no enforcement, and there are no enforcement measures for this bill. There is no crime unless a penalty is attached. There is no criminal penalty here, and the prospect of "licensure" penalties is a sham -- the states, not the federal government, license doctors.