Some things are not susceptible to compromise. Abortion is one of them.
The bill banning "partial-birth" abortions that finally was approved by the legislature was called a compromise by some of the media and some of the legislators, but the committed on both sides knew better. For the anti-abortion "pro-lifers," the new law is a sweet victory, quite possibly the first of many. For the pro-abortion "pro-choicers," it is bitter defeat. ("Pro-lifers" and "pro-choicers" cannot even compromise on terminology, hence all these quotation marks.) Such concessions as the pro-lifers made were for doctors who perform abortions, not the women have them.
None of the pro-choice faction was on hand to watch Gov. Huckabee, a pro-lifer, sign SB 612 into law. A festive group of pro-lifers turned out for the ceremony, hearts as light as the pink and blue balloons one woman brought.
State Sen. Fay W. Boozman III of Rogers and state Rep. James P. Hendren of Sulphur Springs, the chief sponsors of the legislation, pleased the group even more by promising to soldier on. "This is the beginning," Hendren said. "That's what they [the "pro-choicers"] fear." He is right about that.
Boozman and Hendren gave considerable credit to their fellow Republican, Gov. Huckabee, who testified for their bill. His predecessors were pro-choice Democrats, among them Bill Clinton. Now president, Clinton vetoed a federal bill to ban partial-birth abortions last year and is expected to veto another this year. The two gave most of the credit to "the people," who, they said, had made their feelings known to the legislature. And Hendren emphasized that pro-life legislators had not bargained away their principal demands — the new law has criminal penalties for physicians who perform partial-birth abortions, and it allows a partial-birth abortion only when it is necessary to save the life of the mother and no other form of abortion would suffice for that purpose. Practically speaking, that means never. Pro-lifers wanted an exception to protect the health of the mother as well as her life.
"They [the legislature] are setting a dangerous precedent," Janet Scholl, executive director of Planned Parenthood of Greater Arkansas, said in an interview. "The government has no business telling doctors what the safest procedure is. This procedure [partial-birth abortion] is not even done in Arkansas. The whole purpose of the bill is to outlaw one abortion procedure at a time. It's strictly politics by the religious-political extremists."
Bettina Brownstein of Little Rock, a lawyer who has handled abortion litigation, was equally disappointed. "In Arkansas, as in other states, we have very few legislators who are willing to say 'I'm pro-choice' and take the heat. The other side [pro-lifers] scares people. I've met with Arkansas women who are afraid to admit they're pro-choice. This is not good for us at all. I decry any interference with a woman's right to have an abortion. This whole issue is more about women's position in society, how much autonomy a woman is going to have over her own body, than it is about concern over 'unborn children.' "
And one pro-life legislator said, "The Senate finally cracked."
It was the Senate that had blocked anti-abortion legislation in the past. Specifically, it was the Senate Public Health, Welfare and Labor Committee, a comparative hotbed of pro-choice sentiment, that stopped anti-abortion bills coming over from the House before they could reach a vote on the Senate floor. Sens. Mike Bearden of Blytheville and Nick Wilson of Pocahontas were among the committee's pro-choice stalwarts.
History seemed to be repeating itself in the current session, as the Senate Public Health Committee gave a "do not pass" recommendation to the first partial-birth abortion bill that reached it. But the pro-life lobby seemed more numerous and more insistent than ever, and in Little Rock as well as Washington the "partial-birth" name proved a powerfully emotional rallying cry.
Partial-birth is not a medical term, and there is some confusion about what constitutes a partial-birth abortion. Generally, the term is thought to describe a procedure in which the fetus is partially delivered, feet first, before a needle is injected into the head of the fetus to shrink it so that the head too can be withdrawn without harm to the woman. The needle kills the fetus, at least in most cases. That the fetus has a deformed, oversized head that could endanger the woman is one reason the procedure is used.
Even people moderately supportive of abortion rights have been persuaded that support of "partial-birth abortions" is an extremist position. (Procedures used as alternatives to partial-birth abortion entail going inside the woman's body with an instrument to pull the fetus apart and remove it in pieces.) And even legislators normally thought to be flame-resistant, like Wilson, began to feel the heat. By Arkansas standards, there are a significant number of Roman Catholics in Wilson's district.
Bearden said he and Boozman worked out the compromise. "They got a class D felony, which we didn't want. We wanted no criminal penalties for doctors. We got Medical Board review."
The new law defines a partial-birth abortion as "an abortion in which the person performing the abortion partially vaginally delivers a living fetus before taking the life of the fetus and completing the delivery or as defined by the United States Supreme Court." A doctor who performs one, except to save the life of the mother, is guilty of a felony and can be sentenced to prison, but before the prosecutor files charges, he must refer the case to the state Medical Board. If the Medical Board says the procedure used by the doctor was not a partial-birth abortion, the prosecutor "shall not proceed ... "
Dr. William Harrison of Fayetteville, Arkansas's most outspoken abortionist, said the compromise provides sufficient protection for doctors, who he said had feared prosecution for procedures that were not really partial-birth abortions. Nobody in Arkansas does true partial-birth abortions, Harrison said. Boozman said, "I don't know that, and neither does Dr. Harrison. But even if it's true, the state needs a policy. Someone could move in tomorrow and start performing them."
Bearden said the pro-lifers would not agree to an exception for the health of the mother, but that the compromise protects the health of the mother anyway, by using language specifying that Arkansas law must conform to the federal Constitution. The U.S. Supreme Court has said the Constitution protects a woman's right to abortion.
"We felt like we were giving the pro-choice people something they could live with and something we could defend as constitutional," Bearden said. "Everybody thinks the procedure is gross. I don't think anybody minded banning the procedure. We just thought the bill was unconstitutional and too rough on doctors at first."
Every law enacted by the Arkansas legislature must conform to the U.S. Constitution, a fact noted by Rita Spillenger, director of the Arkansas chapter of the American Civil Liberties Union. Spillenger was unimpressed by Bearden's compromise. "It's not worth anything. I don't know whether the legislators sincerely thought they were making the bill better, or whether this was just a sop to us [pro-choicers], to make it look like we're getting something."
Other states are enacting similar laws. The prohibition of partial-birth abortions will be challenged in court somewhere, Spillenger said, and it could be Arkansas.
Print headline:, "A long time coming, but pro-lifers get a win Pro-choicers say they were compromised away." April 4, 1997.