Despite overwhelming support at the White House and in Congress for banning so-called “partial birth” abortions, a legislative snag in the Senate has renewed hopes among some supporters of abortion rights that the measure could be beaten back or at least weakened before it makes it to President Bush’s desk.
Sens. Tom Harkin (D-Iowa) and Barbara Boxer (D-Calif.) are hoping that by using a few arcane procedural maneuvers they can force a House-Senate conference on the bill to endorse the overall legality of abortion rights, or kill the bill outright through filibuster.
Harkin acknowledged that he and Boxer have approached a few lawmakers who supported the overall ban on partial birth abortions but also supported a Harkin nonbinding amendment affirming their support for the landmark 1973 Supreme Court decision, Roe v. Wade, which made abortion legal. The amendment was approved 52-46.
“We’ve broached it, and some people are thinking about it,” Harkin said. “It really depends on what comes out of conference and if they successfully strip out the Roe v. Wade language.”
Of the 17 Senators of both parties who voted for both the bill and the Harkin amendment, Harkin and Boxer only need to convince five of those lawmakers to threaten a filibuster if the Roe v. Wade language is axed in conference. That would cut the number of bill supporters from 64 to 59, one short of the 60 needed to avoid a filibuster.
But a senior Senate GOP aide said Senate Republican leaders were unlikely to let that happen and could decide to stick the partial birth abortion bill — unencumbered by the Roe v. Wade language — into another must-pass conference report.
“There’s more than one way to enact a law around here,” said the GOP aide. “They can do it the easy way or the hard way.”
The bill has been languishing for a month-and-a-half without the appointment of Senate conferees since House passage on June 4. The Senate passed the bill on March 13.
Harkin and Boxer appear to be hoping for one of two possible results. Both would prefer that the bill die without being enacted. Of course, that’s a scenario both Harkin and Boxer agreed is unlikely.
“I’m hoping for it, but we can’t count on it,” Harkin said.
Boxer agreed and denied she was seeking to filibuster.
“I want to make a stand in favor of Roe. I have no intention of filibustering,” said Boxer. “But if we keep Roe in, we might be able to stop this bill.”
The more realistic scenario for Harkin and Boxer is potentially convincing enough Senators to press the House to accept the Roe v. Wade language, and thereby compel the President to sign a bill that says Roe v. Wade “should not be overturned.”
If the bill makes it into law with the Roe v. Wade resolution, Boxer said, the Supreme Court may be less likely to use the case, which abortion rights activists say they will file immediately upon enactment, to overturn abortion rights in their entirety.
But the House’s lead sponsor of the bill, Rep. Steve Chabot (R-Ohio), and other anti-abortion lawmakers flatly refused to consider including the language regardless of whether the bill was under a filibuster threat or might not make it to the president’s desk.
“I see no circumstances under which the House would agree,” Chabot said.
Rep. Lee Terry (R-Neb.) noted that including the language in the conference report would be “a good way to kill the partial birth abortion bill.”
“Even in a sense of the Congress resolution that is non-binding, you’re asking me to vote for something that’s egregious to me,” Terry explained. “It’s just a wedge issue that puts us in a bad position.”
Terry also acknowledged that the underlying purpose of banning the controversial procedure was to undermine abortion rights and the Roe v. Wade decision.
Including the Harkin language in the bill, Terry said, would “basically send a message to the Supreme Court that’s the opposite of the message we’re trying to send.”
Chabot also dismissed the notion that Senate supporters of the partial birth abortion ban would prevent it from becoming law because of the exclusion of a nonbinding resolution.
“Unless those who supported it in the Senate were particularly hypocritical in their support for it in the past, knowing it would be vetoed by [former] President Clinton, I don’t see it. I would hope that that hypocrisy does not exist over there,” Chabot said of the numerous times the House and Senate passed similar legislation during the 1990s only to see it killed by Clinton.
But Boxer is pressing forward and says she has informed Senate leaders that she wants the Senate to take a recorded vote on a procedure, known as the motion to disagree to the House amendment, in order to put Senators on record once again as supporting the Roe v. Wade language. The only amendment the House made to the Senate bill was to strip the Roe provision.
The procedural vote is necessary before the Senate can name conferees. The House has already named its conferees.
Several Senators who voted for both the Harkin proposal and the overall bill said they would likely vote again with Boxer to support the Roe v. Wade language, but most indicated they would vote for the conference report regardless of whether the provision made it.
“This is really about banning partial birth abortion, and when it comes out of conference, I’m going to vote to ban it,” said Sen. Byron Dorgan (D-N.D.).