Partial Fizzle


Whatever else there is to say about our virulently un-p.c. mayor, it appears he is living up to his pro-choice claims. While Michael Long, chairman of the Conservative Party, has insisted Giuliani renounce his stand on so-called partial-birth abortion to get the party’s endorsement, Rudy has refused to back down from his opposition to either a state or federal law banning the hazily defined procedure.

There may be several explanations for Giuliani’s steadfastness on an issue that was crafted to sway all but the most committed pro-choicers to the other side. The most obvious, given our mayor’s willful ways, is that he can’t bear to kowtow to anyone, especially the liquor store owner who happens to run the state’s Conservative Party and is something of a bully himself.

Then there’s the political calculus, not to be overlooked: Even if a Conservative endorsement can bring a candidate 300,000 votes (some think the number is significantly smaller), Rudy may stand to gain more in the Senate race by holding to the middle ground and shoving Hillary leftward. So, while he may be standing on principle, he may also be finding a way to avoid Conservative approval.

But there’s another story behind Giuliani’s snub of Long. The “partial-birth” ploy has lost political ground in the last year. Not long ago, people on both sides of the debate saw the strategy of proposing bans on what was supposed to be a particularly gruesome abortion method as a brilliant tactic for eroding support for abortion rights in general. Thirty states passed “partial-birth” bans and the federal version of the legislation passed the Senate and is expected to pass the House sometime in February, though without the votes to override Clinton’s veto.

Even if the law does manage to pass the House, however, a federal ban probably won’t make it through the courts, which have struck down 20 of the 30 state “partial-birth” bans. At the heart of judicial discomfort with these laws is the recognition that the targeted abortion method isn’t, in fact, a method at all. While those behind the bans insist that “partial-birth” refers to a specific abortion technique used late in pregnancy, others point out that abortions in the last third of pregnancy are already illegal in most of the country—and that the laws are so unclear when defining the procedure that a ban could end up applying to abortion of all kinds.

As U.S. Court of Appeals Judge Richard S. Arnold explained in the unanimous decision that declared “partial-birth” bans unconstitutional: “The law refers to ‘partial-birth abortion,’ but this term, though widely used by lawmakers and in the popular press, has no fixed medical or legal content.” Because of the medical and legal fuzziness, Arnold, a member of the first federal appellate court to consider the matter, decided the bans “would also prohibit, in many circumstances, the most common method of second trimester abortion.”

Why don’t the authors just clean up the bill’s language if they really want to outlaw a specific procedure? According to Alaska Superior Court Judge John Reese, the answer lies in the broader ambitions for the “partial-birth” strategy. “Having passed the Act with knowledge of the legal defects,” Reese wrote in his decision to Alaska’s “partial-birth” ban, “it seems more likely than not that the unstated purpose of the Act was to cloud the scope of abortion procedures, i.e. to restrict abortion in general.”

While the majority of judges agree with Reese and Arnold, in October another federal appeals court upheld state bans in Wisconsin and Illinois. The U.S. Supreme Court is expected to settle the matter once and for all sometime in the next year or two.

In the meantime, many state legislatures, including New York’s, are still considering their own “partial-birth” bans. New York’s bill passed the Senate in March. Most of those close to the process predict it won’t pass the assembly, though some pro-choicers are still worried.

“We’re not taking anything for granted,” says Kelli Conlin, director of the New York State affiliate of the National Abortion and Reproductive Rights Action League. “The public and legislators are under such misconceptions on this issue.”

Nevertheless, legislators know that opposing a “partial-birth” ban can open them up to being portrayed as baby killers. Michael Long knows this too. And he’s prepared to do what he can to force the matter—including backing an assortment of minor political players who agree with him. But if Rudy and Hillary stick to their positions, whatever their reasons for having them, they could help deflate the self-important Long and push “partial-birth” even further off the political map.

In the end, says Conlin, “The New York Senate race could be a really positive thing for us.”