WASHINGTON – President Bush has said he will sign into law a measure that threatens fines and jail time for doctors who perform partial-birth abortions (search) — but nobody seems to know how the law would be enforced.
Few states require doctors to report they are performing abortions, and they do not have any means to monitor whether doctors are telling the truth when they do report such procedures.
"I don't imagine there'd be anyone watching," said Angela Martin, president of Maryland Right to Life (search).
The partial-birth abortion bill won final approval from the Senate last week and was sent to the president, who said he looks forward to signing it into law. It establishes a fine and up to two years in prison for physicians who perform the procedure.
Since it will be a federal law, state agencies say it will be the federal government's responsibility to enforce it.
But the U.S. Justice Department did not return several days of phone calls requesting comment on how it plans to do so.
A spokeswoman for Sen. Rick Santorum, R-Pa., the author of the legislation, said she "really does not have an answer" on how it might be enforced.
Santorum spokeswoman Erica Wright said the process of enforcement "is still probably being formulated."
Wright said doctors could be prosecuted both federally and at the state level in those states that have their own partial-birth laws. Since 1995, thirty-one states have enacted bans on partial-birth abortions, but in every state where the bans have been challenged, the courts have declared them unconstitutional.
But Maryland, for instance, has never passed a partial-birth ban, and is one of only four states that provide state funding of abortions without a court order, according to the Alan Guttmacher Institute (search).
John Nugent, the president of Planned Parenthood (search) of Maryland, said clinics there will continue "business as usual." He believes the new law is so problematic that he does not expect it to be enforced.
Vicki Saporta, president of the National Abortion Federation (search), said the new law is too similar to a Nebraska law that the Supreme Court struck down in 2000. The Nebraska law did not include an exception to protect the health and life of the mother, and it was too vaguely worded, the court said.
On Friday, the American Civil Liberties Union filed a lawsuit in a federal court in New York on behalf of the National Abortion Federation. The Center for Reproductive Rights filed a separate lawsuit in a federal court in Nebraska on behalf of Dr. Carhart, the lead plaintiff in the 2000 case.
"I am challenging this new federal ban for the same reasons I challenged the Nebraska abortion ban: it is an attack on women's right to obtain safe abortions," said Dr. Carhart. "As a doctor, it is my duty to use the safest procedures I have available once a patient decides to terminate her pregnancy."
Opponents of the ban say the court struck down Nebraska's law because it did not provide an exception to protect women's health, and it prohibited several abortion procedures, including the method most commonly used in the second trimester, before fetal viability.
Supporters of Santorum's bill note that it includes a provision to protect the life of the mother, and that the actual procedure is more clearly defined than it was in the Nebraska law.
The new law also would allow the father or maternal grandparents of the fetus to sue for damages if the mother was younger than 18 when she underwent an abortion. Even if abortion doctors do not go to prison, the law could presumably hit them in their pockets.
But Nugent said he has never seen a case in which a clinic got caught in the middle of a family fight over an abortion.
"It doesn't make any sense to criminalize doctors to provide medical care," Saporta said. "You don't want your doctor put in that position if you're a woman."
Nugent said that rather than using "partial-birth" abortion, a term not recognized by doctors, the law would have been clearer if it outlawed "dilation and extraction (search)," the procedure he believes it really targets.
But the bill's supporters dismiss as scare tactics the claim that the bill would cover all abortion procedures. They said the bill includes "clear anatomical landmarks" that separate partial birth from other types of abortion.
Of the abortions reported to the Maryland state health department in 2002, just 1.3 percent were identified as "surgical D&C," which includes dilation and extraction.
Though the rate of abortion has declined between 1996 and 2000, Maryland has seen a rise in the number and rate of abortions, according to The Guttmacher Institute.
Helio Lopez, who coordinates abortion data for the state's health department said the number of providers who report to the state has declined during that time, in part, she speculated, because doctors who provide abortions have been targeted in a string of violent attacks over the last decade.
"Sometimes they get scared," Lopez said.