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The partial-birth abortion bill dissected

September 30, 1999
By: Sakina Dewji and Hollie Maloney
State Capital Bureau
Links: HB 427

JEFFERSON CITY - Now that Missouri's partial-birth abortion is law, it's up to the courts to decide whose interpretation of the bill is the correct one. That decision is not expected until next spring. In the interim, both sides of the issue have been laying out their arguments.

Both opponents and supporters say they want a ban on late term abortion. The dispute is in the meaning of the words in the bill -- a dispute before a federal judge in Kansas City.

Here are the sections of the bill and the differing legal interpretations:

"2. As used in this section, and only in this section, the following terms shall mean:

"(1) 'Born', complete separation of an intact child from the mother regardless of whether the umbilical cord is cut or the placenta is detached;"

This one-sentence definition is at the center of one of the major disputes over the bill.

Joe Bednar, the governor's chief legal counsel, argues that separation can include a fetus detached from the womb, but not born or partially born. Abortions performed at five weeks involve the embryo being suctioned from the womb by a tube, Bednar argues. "Once into the tube, it has been separated," he said. Since the embryo is in all cases separated from the womb before it is destroyed, the law would ban all abortions, he says.

Separation, according to supporters of the new abortion-restriction law, means the infant is outside or half outside the mother's body. That is when abortion is banned by the law, they say. Sam Lee, one of the state's chief anti-abortion lobbyists and a contibutor to the law, says they used "Tabor's and Dorland's Medical Dictionary" to define the terms. "To say that a child can be born and still inside the womb is absurd," Lee said.

"(2) 'Living infant', a human child, born or partially born, who is alive, as determined in accordance with the usual and customary standards of medical practice and is not dead as determined pursuant to section 194.005, RSMo, relating to the determination of the occurrence of death, and has not attained the age of thirty days post birth;"

Opponents of the law say this subsection again links the law to abortions as early as five and a half weeks. "Anything not dead is considered alive," said Chuck Graham, D-Columbia. He says section 194.005 defines death as not having respiration and circulation. This starts around five and a half weeks says Graham. "That is where the jump is."

Lee disagrees. "I've read Roe v. Wade. We can't ban all abortions. To attempt to do that in this bill would be nonsense," Lee said. He says other bans on partial-birth abortions that have gone to court were unclear as to when the child being born was alive or stillborn. "We put that in for evidence of life; a standard the state could use in proving the child was alive."

"(3) 'Partially born', partial separation of a child from the mother with the child's head intact with the torso. If vaginally delivered, a child is partially separated from the mother when the head in a cephalic presentation, or any part of the torso above the navel in a breech presentation, is outside the mother's external cervical os. If delivered abdominally, a child is partially separated from the mother when the child's head in a cephalic presentation, or any part of the torso above the navel in a breech presentation, is outside the mother's external abdominal wall."

This subsection makes surgical removal of tubal pregnancies (where the embryo implants in a fallopian tube) illegal because it is separated and intact, Bednar says. "The act of separation caused the death."

Lee says that claim is false. Tubal pregnancies are life threatening, he says, and therefore excluded from the law for the protection of the life of the mother.

"3. A person is guilty of the crime of infanticide if such person causes the death of a living infant with the purpose to cause said death by an overt act performed when the infant is partially born or born."

Dara Klassel, a lawyer for Reproductive Health Services of Planned Parenthood, says this can happen in any abortion. "Sometimes it still has signs of life, so any act to complete the procedure is a violation of this act," she said.

Lee says it wouldn't be illegal because the act was started inside the womb. He also says the child must be intact for this law to be active. "If the baby is in pieces, like in suction and curettage (abortions), then it doesn't apply."

"5. A physician using procedures consistent with the usual and customary standards of medical practice to save the life of the mother during pregnancy or birth or save the life of any unborn or partially born child of the same pregnancy shall not be criminally responsible under this section. In no event shall the mother be criminally responsible pursuant to this section for the acts of the physician if the physician is not held criminally responsible pursuant to this section."

There is an exception to save the mother's life, but there is no exception to save the mother's health, even in cases of severe mental retardation or paralysis, Bednar says. The U.S. Supreme Court has stated that health exceptions must be included, opponents say.

Supporters say a health exception would be too broad. "It'd be a loophole," Lee said. He cited Kansas's law which allows for the health exception. "It didn't result in partial-birth abortion being stopped. In the last six months of 1998, 58 partial-birth abortions have been performed."

"7. Only that person who performs the overt act required under subsection 3 of this section shall be culpable under this section, unless a person, with the purpose of committing infanticide, does any act which is a substantial step towards the commission of the offense which results in the death of the living infant. A 'substantial step' is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense."

Opponents say doctors aren't the only ones who can be held responsible. The mother or anyone who assists her or the doctor might be charged with ten years to life in prison, they say.

Lee agrees but with stipulations. He says nurses or other medical assistants can be held responsible but only if they knew the doctor was going to perform the act.

Chapters 562 and 563 of Missouri Revised Statues, dealing with instances when harming someone could be justified, are attached to the last section of the bill. The dispute is the provision of "defense of others" law.

563.031-"A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he reasonable believes such force to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force by such other person..."

Opponents claim that the 563 reference is an inducement to violence. Since a living infant is a person according to the Missouri Supreme Court, reference to this section could raise the idea of a possible defense for acts of violence against abortion providers.

Supporters call that claim a lie. Louis Defeo, a drafter of the law, says a person can use deadly force only if no other means of stopping the crime is available. "The crime is narrowly defined," he said. A person must have enough medical knowledge to know what was going on, he says, and even then a person could push the doctor away and then call the police.

The final dispute is the lack of a rape and incest exception. While supporters say that early term abortion is available for women in such situations, opponents say that in some cases the victims of rape or incest may not come forward until the late term of the pregnancy period.

Legislators in support of the ban claim that by then the infant is living and whatever the means of conception, it should not be killed.