Xavier Becerra is wrong that no law addresses partial-birth abortion

Congressional Republicans recently quizzed Xavier Bercerra, the secretary of health and human services, on abortion policy. 

At a May 12 hearing, Rep. Gus Bilirakis, R-Fla., asked Becerra about some of his testimony during his confirmation hearing earlier this year, when the nominee said that his job would be to "make sure that I’m following the law." 

Bilirakis asked Becerra whether he agreed that "partial-birth abortion is illegal." The term generally refers to late-term procedures formally known as "dilation and extraction" or "dilation and evacuation," which opponents of abortion have long considered especially objectionable.

Here’s their exchange:

Becerra: "We will continue to make sure we follow the law. Again, with due respect, there is no medical term like partial-birth abortion, so I’d probably have to ask you what you mean by that to describe what is allowed by the law. But (the Supreme Court case on abortion) Roe vs. Wade is clear, settled precedent: A woman has a right to make decisions about their reproductive health, and we will make sure that we enforce the law and protect those rights."

Bilirakis: "And do you agree with this particular law?"

Becerra: "Which law are we talking about, sir?"

Bilirakis: "The law concerning partial-birth abortion."

Becerra: "Again, as I said, there is no law that deals specifically with the term partial-birth abortion. We have clear precedent in the law on the rights women have to reproductive health care." 

One of the things Becerra said caught the attention of anti-abortion advocates — that "there is no law that deals specifically with the term ‘partial-birth abortion.’" 

A reader asked us to look into it, and when we did, we found that Becerra was wrong: The Partial-Birth Abortion Ban Act was enacted in 2003. Becerra should have known that: As a member of the House then, he voted against it.

The 2003 law is not obscure; it was the subject of long and heated debate before it was passed by the Republican-contolled House and Senate and signed by President George W. Bush. Its aim was to limit late-term abortions by banning the specific procedures used for them.

The law says a physician is involved in a "partial birth abortion" if he or she "deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus."

According to the law, a physician who knowingly performs a partial birth abortion is subject to up to two years in prison and a fine. The one exception is if the procedure is necessary "to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury." (The mother is not subject to prosecution under the law.)

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The House passed the legislation on June 4, 2003. Becerra, then representing a district in California, voted against the measure, as did 132 other Democrats out of the 205 then serving in the chamber. The law was upheld by the Supreme Court in 2007.

Several scholars who have studied abortion law agreed that Becerra’s statement is wrong.

"In a nutshell, there is a law that deals with the term partial-birth abortion," said Mary Ziegler, a Florida State University law professor and the autor of several books on abortion, including "Abortion in America: A Legal History, Roe v. Wade to the Present."

Given the clear language of the law, the "statement is clearly false," said Teresa S. Collett, a law professor at the University of St. Thomas. 

It’s important to note that there is a long-running dispute between abortion-rights supporters and anti-abortion advocates over whether the term "partial birth abortion" is the appropriate one to use for abortions of this type.

The term has usually been favored by opponents of abortion, perhaps because it suggests that a child has been "born," which would make the abortion procedure more akin to murder.

On the other side, abortion-rights advocates have tended to use the phrase "late-term abortion," which is less polarizing.

Because the 2003 law was passed under unified Republican control, and because anti-abortion lawmakers are disproportionately Republican, the term "partial-birth abortion" was used in the law. 

In other words, experts said that "partial birth abortion" is really more of a political label than a medical one.

"I would say that Becerra was engaged in legalistic quibbling to avoid answering the question," said Dwight Duncan, a University of Massachusetts law professor.

When we reached out to Becerra’s office, they offered a statement centered on the argument that dilation and extraction is the term recognized in the medical literature and by practitioners, not "partial birth abortion."

"Roe v. Wade is the law of the land and HHS will continue to follow the law and ensure the American people have access to health care — including reproductive care," the statement said. "During the hearing, Secretary Becerra clarified that partial birth abortion is not a medically recognized term. As the secretary said multiple times, HHS respects and will enforce the law."

Becerra said, "There is no law that deals specifically with the term ‘partial-birth abortion.’"

While the term "partial birth abortion" is more of a politically derived label than an official medical term, the legal reality is that Congress passed the Partial-Birth Abortion Ban Act in 2003, and the Supreme Court upheld it in 2007. Becerra himself voted against the law when it came up in the House.

We rate the statement False.