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Fact-Check Sticks It to Biden's HHS Secretary for Denying Existence of Federal Abortion Law

AP Photo/Rich Pedroncelli, File

Last week, Health & Human Services Secretary Xavier Becerra went before a a House Energy and Commerce Committee, where he was asked by multiple Republican congressmen about the Partial-Birth Abortion Ban Act of 2003, a federal law which was upheld by the U.S. Supreme Court in 2007's Gonzales v. Carhart. Becerra denied the existence of the law, leading him to be fact-checked by PolitiFact, which rated his claim as "false."


My article focused on Becerra's exchange with Rep. John Joyce (R-PA), but he also was questioned by Rep. Gus Biliraki (R-FL), which was the subject of PolitiFact's fact-check, as Becerra had claimed "there is no law that deals specifically with the term partial-birth abortion."

Sec. Becerra's issue with the question, as it would be throughout the hearing, was to do with the term, a cop-out he sticks to even now.

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 Roe v. 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.

Rep. Bilirakis: And do you agree with this particular law?

Becerra: Which law are we talking about, sir?

Rep. 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.


Here is PoltiFact's explanation for their rating, which also addresses Becerra taking issue with the term:

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 [sic] 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.


Disagreement over the term "partial birth abortion"

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."


The statement from Becerra's office is nothing new from what he's been saying, and provides no more reassurances. For the statement to include "As the secretary said multiple times..." makes it sound as if we are the ones not listening, or are the ones doing something wrong. 

People are listening The editors for the Washington Examiner were quite clear on their take, writing on Sunday that "If Xavier Becerra loves abortion too much to enforce existing law, then he should resign." The editorial closed by noting:

Becerra’s dodge is unacceptable. Members of Congress should send him a follow-up question, under oath, that is simple and direct: “The 2003 Partial Birth Abortion Act is the law of the land, and it was confirmed as constitutional by the Supreme Court’s 2007 ruling in Gonzales v. Carhart. Will you enforce the ban on the procedure as specifically defined in that act?”

The only acceptable answer would come in one word: “Yes.

If Becerra cannot give that answer and follow through with action, he should resign. And if he will not resign, he should be impeached for refusal to do his sworn duty under the Constitution.

Sen. Marsha Blackburn (R-TN) weighed in on Becerra's concerning comments when speaking to Townhall about pro-life issues. She reiterated that Becerra "is proving to be true to his record."

As I've written before, that record not only involves pro-abortion policy positions, though that Becerra voted against the Partial-Birth Abortion Ban as a congressman means he especially should know about the law, as PolitiFact mentioned.


Becerra has also targeted pro-life pregnancy centers, investigative journalists exposing Planned Parenthood's scandal in trafficking aborted fetal body parts, Catholic hospitals who do not wish to perform abortions and the Trump administration for protecting Catholic nuns from having to provide contraception. It's worth noting that Becerra identifies as Catholic. 

Sen. Blackburn also spoke to the need of holding officials accountable:

"For him to be confused or to be evasive in support of federal law when it comes to partial-birth abortion should not surprise us. This is one of the reason why it's so imperative that we hold these individuals who are part of the administration and cabinet so they understand we are watching," she told Townhall. "We think it’s very important that they be held accountable for upholding the rule of law. It's why we question nominees and the appointees when they come before us in oversight hearings."

Perhaps most concerning of all, however, was what I highlighted last week. When being questioned by Rep. Joyce, Sec. Becerra referred to these abortion methods in the present-tense. He must be asked to confirm if he knows of anyone currently performing this procedure, which means they would be in violation of federal abortion law.

"And as my wife would tell you, as an OB-GYN is, that the dilation and extraction procedure that is often used, late-stage abortions, for women, it's to protect the life and health of that woman," the secretary said, referring to the partial-birth abortion method by it's other name of Dilation and Extraction (D&X).


Further, the reasons he cites for late-term abortions--which may be legally performed under other types of methods--are wrong. Research shows that most late-term abortions are performed on healthy women with healthy babies, and are done for socio-economic reasons.  

Regardless of how one refers to the procedure, it is a disturbing one. Terminology doesn't change that. Townhall Columnist Katie Yoder wrote that the law refers to the procedure as follows:

Partial-birth abortion is an abortion “in which a physician deliberately and intentionally vaginally delivers a living, unborn child's body until either the entire baby's head is outside the body of the mother, or any part of the baby's trunk past the navel is outside the body of the mother and only the head remains inside the womb, for the purpose of performing an overt act (usually the puncturing of the back of the child's skull and removing the baby's brains) that the person knows will kill the partially delivered infant, performs this act, and then completes delivery of the dead infant.”

We will be following any such developments from Congress.

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