Oppose H.R. 760, the So-Called ""Partial Birth Abortion 
Ban Act of 2003"" at Tomorrow's Constitution Subcommittee Mark Up 

Dear Representative:

The ACLU urges you to oppose H.R. 760, the so-called ""Partial-Birth Abortion Ban Act of 2003"" when it is marked up in the Constitution Subcommittee of the House Judiciary tomorrow.  H.R. 760 poses a grave threat to women's health because it outlaws safe and common abortion procedures.  It also violates the Constitution. 

Less than three years ago, the Supreme Court spoke unequivocally on these bans.  In Stenberg v. Carhart, 530 U.S. 914 (2000), the Court made clear that so-called ""partial-birth abortion"" bans pose serious threats to women's health and violate the Constitution.

Some contend that H.R. 760 -- the newest iteration of the ban -- is materially different from earlier versions and that it should therefore withstand constitutional scrutiny.  This is not accurate.  The bill continues to reach more than a single abortion procedure.  In fact, it bans an array of safe abortion procedures, including the method most commonly used in the second trimester of pregnancy.  And, the bill continues to lack an exception to protect women's health -- a requirement that is constitutionally compelled, as the Supreme Court made clear in Stenberg.

Like the ban invalidated in Stenberg, the language in H.R. 760 applies to dilation and evacuation (""D&E"") procedures, the most common abortion procedure performed in the second trimester, which starts at approximately thirteen weeks of pregnancy.  Such a ban on D&Es would pose a grave threat to women's health, as the Supreme Court recognized.

But even if it were true, as the bill's proponents claim, that H.R. 760 covers only a single abortion procedure known to the medical community as ""dilation and extraction"" or ""D&X"" (also called ""intact D&E""), it would still endanger women's health.  A threat to women's health always results when a safe medical procedure is removed from the physician's array of options, as there will always be some woman for whom the banned procedure would be the safest.  

And, contrary to the contentions in the findings of H.R. 760, a wealth of medical evidence supports the conclusion that D&X is a safe procedure that may well be the safest option for some women.  After hearing extensive expert medical testimony, every court in the country to reach the question but one has agreed with this conclusion.  Moreover, the American College of Obstetricians and Gynecologists, the leading professional association of physicians who specialize in the health care of women, has concluded that D&X is a safe procedure that may be the safest option for some women.  Relying on such medical evidence, the Supreme Court concluded in Stenberg that ""significant medical authority supports the proposition that in some circumstances, D&X would be the safest procedure.""  Stenberg, 530 U.S. at 932.  Indeed, the Court held that ""a statute that altogether forbids D&X creates a significant health risk.""  Id. at 938.  

The ACLU urges you to oppose H.R. 760.  It is a dangerous threat to women's health and an unconstitutional attack on reproductive freedom.

Sincerely, 

Laura W. Murphy
Director

Gregory T. Nojeim
Associate Director and Chief Legislative Counsel