WASHINGTON — The Senate on Tuesday handed a long-awaited victory to the antiabortion movement, giving congressional approval to a bill that would impose the first federal ban on an abortion procedure in 30 years.
The Senate voted 64 to 34 for a bill that prohibits a controversial procedure that critics call "partial-birth" abortion, sending the measure to President Bush for his promised signature.
But the victory may be short-lived. The issue will soon go to the courts, where abortion-rights advocates are poised to challenge the constitutionality of the measure as soon as Bush signs it into law. Critics of the ban said they were confident the measure would be struck down because it did not include an exception for cases in which a woman's health is at risk if the procedure was not used.
"For the first time in history, Congress is banning a medical procedure that is considered medically necessary by physicians," said Sen. Barbara Boxer (D-Calif.), who led the fight against the bill. "This is a radical, radical thing that is about to happen."
Seventeen Democrats joined 47 Republicans in voting for the bill. Voting against it were three Republicans, 30 Democrats and one independent.
Proponents of the bill said it was carefully crafted to avoid the constitutional pitfalls of a Nebraska law, designed to ban the same procedure that the Supreme Court voted 5 to 4 to overturn in 2000. But even some antiabortion activists said it might take a change in the Supreme Court lineup -- or a conversion by a sitting justice -- for the bill to be upheld.
"We hope that by the time this bill gets to the Supreme Court, there will be a shift from the extreme and inhumane position" expressed in the 2000 opinion, said Douglas Johnson, legislative director of the National Right to Life Committee.
Although congressional action may not be the final word on the issue, the Senate vote was applauded as a political triumph by antiabortion activists, who have made the measure a crucial test of their strength in Congress. It is the clearest evidence to date of the difference it makes to antiabortion forces to have Republicans in control of both Congress and the White House. Similar legislation was passed in both 1996 and 1997, but was vetoed each time by President Clinton.
With his signature on the bill, Bush will make good on a promise to a core Republican constituency just as he heads into his 2004 reelection campaign.
"This is very important legislation that will end an abhorrent practice and continue to build a culture of life in America," Bush said in a statement issued in Singapore. "I look forward to signing it into law."
As a practical matter, the law likely will not take effect any time soon. Legal experts have said it could be three years before the court challenges reach a conclusion; in the meantime, the law may be blocked from taking effect.
If upheld in court, the law will be a legislative landmark in the long history of congressional debate about how far it can go in restricting abortion under the Supreme Court's 1973 Roe vs. Wade ruling, which established, under the constitutional right to privacy, a woman's right to have an abortion before a fetus can live on its own. While Congress has passed many measures restricting federal funding for abortion, it has never criminalized an established abortion procedure.
At issue is the procedure called partial-birth abortion because it involves partially removing an intact fetus from the womb before it is destroyed. Typically, before the fetus' head emerges, scissors are used to penetrate its skull and brain matter is removed. The procedure, called dilation and extraction by medical practitioners, is usually performed during the second trimester of pregnancy; the vast majority of abortions are performed during the first three months.
There is some dispute about the frequency of such procedures. The Alan Guttmacher Institute, a research group that supports abortion rights, estimated there were about 2,200 dilation-and-extraction abortions in 2000, up from 363 in 1996. Abortion opponents said that figure was too low. But in either case, it likely would be just a fraction of the 1.3 million abortions performed nationally in 2000, the latest year for which figures are available.
Under the bill approved by Congress, doctors would face fines and up to two years in prison for knowingly performing such an abortion. The authors of the legislation included congressional "findings of fact" that suggest the procedure is never medically necessary.
The House approved the bill about three weeks ago, after House and Senate negotiators ironed out minor differences between versions of the bill passed by the two chambers earlier this year.