So-called Partial Birth Abortion

by Jay Johansen
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News stories about partial-birth abortion routinely use phrases like "so-called partial-birth abortion", or "a procedure which opponents call 'partial-birth abortion'". Why do reporters find it necessary to use such qualifying phrases?

When an explanation is given, it is usually similar to the one found on Planned Parenthood's web site. You'll find this explanation in many places on their site with slightly different wording, but for example, they have a so-called "Factsheet" which says:

"Partial-birth" abortion is a political, not a medical term. It describes no one particular abortion procedure.
In other words, their stated objection is that it is a term invented by Congress rather than a term invented by abortionists. Surely our logical response should be, "So what?" When we talk about taxes we often use the term "exemptions" to mean "family members". As in, "How many exemptions are you claiming on your W-2?" To the best of my knowledge, no one ever referred to family members as "exemptions" before Congress wrote this definition into tax law. It is not a medical term; it is not a scientific term; it is not a religious term; it is not a term defined by any other human activity, except Congress when it writes tax law. And yet, I have never once heard a reporter say "a so-called exemption" or "a family member that IRS officials call an 'exemption'".

Indeed, the government routinely borrows or invents words and phrases and gives them specific meanings in laws. Read any collection of laws, and you will find that they are often filled with technical legal definitions. Sometimes they redefine common words to mean something very different: Legal definitions of the word "person" often specify that it includes corporations and government agencies, for example. Other times they invent entirely new words.

Congress invented the term "partial-birth abortion" for exactly the same reason that it gives its own definitions to so many other words. Suppose that tax law simply said that you could reduce your taxes by such-and-such an amount "for each member of your family". Surely honest people would ask, "Exactly who can I include? Does it include my son who is away at college? My daughter who is married but living with us while her husband is overseas with the Army? How about the elderly uncle that we are taking care of?" Etc etc. And surely there would be people who would try to stretch the definition. "We still consider our son Ted to be part of the family, even though he died thirty years ago. And we have always thought of our goldfish as a member of the family ..." So instead of simply saying "family members", the law invents the new word "exemptions", and carefully defines it to specify exactly who is included and who is not.

When Congerss invented the term "partial-birth abortion", they had a specific procedure in mind that is called "Dilation and Extraction", or "D&X", by the abortinist who invented it. Why didn't they simply call it "D&X"? Well, another abortionists had invented what was essentially the same procedure, and he called it "Intact Dilation and Evacuation". If the law had simply said "D&X", would it have applied to this procedure as well? What about other, similar procedures? What if some new procedure was invented, which perhaps had something in common with D&X, but was also very different from it in some ways. How would anyone know whether the law was intended to cover this new procedure? Indeed, what if an abortionist who was doing D&X's simply decided to start using another name for it? Would the law still apply to him? Logically I would think it should, but ...

So Congress invented a new term, and carefully defined it.

In his dissent in the case of Stenberg v. Carhart Justice Clarence Thomas criticized his colleagues on the court for striking down a Nebraska law. Among the reasons they had given was that the law was too vague, because it used the term "partial birth abortion" rather than "Dilation and Extraction". Thomas wrote:

There is, of course, no requirement that a legislature use terminology accepted by the medical community. A legislature could, no doubt, draft a statute using the term “heart attack” even if the medical community preferred “myocardial infarction.” Legislatures, in fact, sometimes use medical terms in ways that conflict with their clinical definitions, see, e.g., Barber v. Director, 43 F.3d 899, 901 (CA4 1995) (noting that the medical definition of “pneumoconiosis” is only a subset of the afflictions that fall within the definition of “pneumoconiosis” in the Black Lung Act), a practice that is unremarkable so long as the legal term is adequately defined. ... “We have traditionally left to legislators the task of defining terms of a medical nature that have legal significance.” Kansas v. Hendricks, 521 U.S. 346, 359 (1997). And we have noted that “[o]ften, those definitions do not fit precisely with the definitions employed by the medical community.” Ibid.

Further, it is simply not true that the many legislatures, including Nebraska’s, that prohibited “partial birth abortion” chose to use a term known only in the vernacular in place of a term with an accepted clinical meaning. When the Partial-Birth Abortion Ban Act of 1995 was introduced in Congress, the term “dilation and extraction” did not appear in any medical dictionary. ... The term did not appear in descriptions of abortion methods in leading medical textbooks. ...

Not only did D&X have no medical meaning at the time, but the term is ambiguous on its face. “Dilation and extraction” would, on its face, accurately describe any procedure in which the woman is “dilated” and the fetus “extracted,” including D&E. ... In contrast, “partial birth abortion” has the advantage of faithfully describing the procedure the legislature meant to address because the fact that a fetus is “partially born” during the procedure is indisputable. The term “partial birth abortion” is completely accurate and descriptive, which is perhaps the reason why the majority finds it objectionable. Only a desire to find fault at any cost could explain the Court’s willingness to penalize the Nebraska Legislature for failing to replace a descriptive term with a vague one. There is, therefore, nothing to the majority’s argument that the Nebraska Legislature is at fault for declining to use the term “dilation and extraction.”

I am particularly struck by Justice Thomas statement that, "The term 'partial birth abortion' is completely accurate and descriptive, which is perhaps the reason why the majority finds it objectionable." One must wonder if this is, indeed, the problem: people who defend abortion object to the term because it is just too descriptive. They know that most people who hear it are made at least a little bit uncomfortable. If Congress had chosen to call this a "type 17-B" abortion, do you think that pro-abortion lobbyists and reporters would be quite so careful to say "so-called" and to put qualifications around it? My guess is that they would not.

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Posted 14 Jul 2001.

Copyright 2001 by Pregnant Pause
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