Partial-Birth Abortion: Recent Developments in the Law

Publication Date: October 2004

Publisher: Library of Congress. Congressional Research Service

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Research Area: Law and ethics

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Abstract:

The term "partial-birth abortion" refers to a method of abortion called "dilation and extraction" or "D & X" by the medical community. D & X involves the extraction, from the uterus and into the vagina, of all of the body of a fetus except the head. Once the body of the fetus is in the vagina, the contents of the skull are suctioned and the intact fetus is removed from the woman's body.

Since 1995, at least thirty-one states have enacted laws banning partial-birth abortions. Although many of these laws have not taken effect because of temporary or permanent injunctions, they remain contentious to both pro-life advocates and those who support a woman's right to choose. This report focuses on the U.S. Supreme Court's decision in Stenberg v. Carhart, a case involving the constitutionality of Nebraska's partial-birth abortion ban statute. In Stenberg, the Court invalidated the Nebraska statute because it lacked an exception for the performance of the D & X procedure when necessary to protect the health of the mother, and because it imposed an undue burden on a woman's ability to have an abortion.

This report also discusses various legislative attempts to restrict partial-birth abortions during the 106th, 107th, and 108th Congresses. S. 3, the Partial-Birth Abortion Ban Act of 2003, was signed by the President on November 4, 2003. Although the Court has held that restrictions on abortion must allow for the performance of an abortion when it is necessary to protect the health of the mother, the act does not include such an exception. The act has been challenged in three separate lawsuits. Federal district courts in all three cases have concluded that the act is unconstitutional.