Sheila Gibbons

(WOMENSENEWS)–The news and editorial treatment of U.S. District Judge Phyllis Hamilton’s June 1 ruling that the Partial Birth Abortion Ban Act is unconstitutional shows how the confusion and polarization around this reproductive-rights issue has migrated from politics into journalism.

Some coverage was laudable for being clearly written, precise and informative. But errors, obfuscation and unanswered attacks on Hamilton–both in the news stories as well as the editorial pages of the dozen papers I checkedout–clouded the complex legal and medical dimensions of a decision that profoundly affects women’s rights and safety.

The ruling applies to the employees and members of the nation’s approximately 900 Planned Parenthood clinics and physicians who work for Planned Parenthood, as well as employees of the city and county of San Francisco, which joined the suit challenging the ban passed by Congress in November. It allows these medical practitioners to provide abortions without the threat of criminal charges under the ban. Two other lawsuits, filed by abortion doctors, are pending before federal judges in New York and Nebraska. Yesterday, closing arguments were made in the New York case.

Using Charged Terms

The Associated Press, whose reports have worldwide reach, described intact dilation and extraction–among the procedures that could be banned by what the judge criticized as a vaguely worded law–as removing "a living fetus" from the womb. The sentence caught my attention because the term "living fetus" invigorates the argument put forth by abortion foes that life begins at conception, not when the fetus is able to survive on its own outside the womb.

Hamilton warned that the term–in the text of the ban passed by Congress–was medically vague and misleading. (She pointed out, for instance, that it could be confused with fetuses able to live outside the womb.) But by using the politically charged term without interpretation in its own coverage the AP ignored the judge’s admonishment and, perhaps unwittingly, took a political side in the story.

USA TODAY offered readers the same slippery footing when it described the ban as pertaining to a "living" fetus.

Vagueness as Chief Objection

Also egregious was the failure by many news organizations to explain what exactly was being banned, a vagueness that Judge Hamilton raised as a chief objection. The Wall Street Journal said that abortion critics use "partial-birth abortion" to describe the banned procedure, while abortion rights proponents "prefer the more clinical name, ‘dilation and extraction,’ or D and X." It reported this even though testimony in the trial revealed that the law most likely covers two procedures; dilation and extraction (D and X) as well as dilation and evacuation (D and E), the more common second-trimester method.

Likewise, the Washington Times said that partial-birth abortion is "also known as intact dilation and extraction," as if the terms are equivalent.

The New York Times and The Washington Post carefully reported Hamilton’s point that "the term partial-birth abortion is neither recognized in the medical literature nor used by physicians who routinely perform second trimester abortions."

The Post further noted Hamilton’s criticism of the inflammatory language in the law. "By referring to the procedure as ‘infanticide,’ Congress was being ‘grossly misleading and inaccurate,’" it quoted Hamilton. It also quoted the judge as saying that "Congress was aware that the abortion procedure banned by the bill applied to fetuses that were too young to live outside the womb." This was an important distinction, but I saw it in the Post and nowhere else.

Since the ban does not make an exception for a woman’s health, it could endanger the lives of thousands of women a year. Nonetheless, that central feature of the case was completely ignored by some newspapers and buried at the end of the story by others. USA TODAY put it in the third-to-last paragraph. The Washington Times noted it about two-thirds of the way down. The Wall Street Journal put it in its last paragraph. The Cleveland Plain Dealer and the Wichita Eagle in Wichita, Kans., cut it from their versions of the AP story.

Mishandling of Judge

Then there was the problem of how Judge Hamilton was treated.

In their news reports, some papers allowed attacks on Hamilton to stand without any quotes in support of her judicial character. The Washington Times quoted Family Research Council President Tony Perkins, who described the ruling as "yet another example of a judge with a supersized view of her authority."

Bush-Cheney Campaign Chair Marc Racicot, quoted in a number of papers, said the "tragic ruling . . . shows why America needs judges who will interpret the law and not legislate from the bench." (Unless the opinions they render align with his, of course!). By turning to sources with expertise in politics, but not constitutional law or medicine, reporters and their editors treated the ruling as a political event, undermining readers’ expectations of judicial neutrality.

In its next-day story, USA TODAY offered prominent coverage of the administration’s sensational response to the ruling. In its second paragraph–even before it explained Hamilton’s reasoning–it quoted a Justice Department spokesperson as pledging to continue to devote "all resources necessary" to ending "an abhorrent practice" and to continue "to build a culture of life in America."

The story ran on page 3A, just above coverage of the trial of Scott Peterson, charged with murdering his pregnant wife, Laci, and their unborn son, adding to the general but erroneous belief that the partial-birth abortion ban outlaws late-term abortions. Also, neither article pointed out that abortion is exempted from the California code under which Scott Peterson has been charged with causing a fetal death. By offering readers a page on which alleged wife killers and judges who uphold abortion rights are part of the same mix–without any language distinguishing them–the layout, however subliminally or unintentionally, furthers the anti-choice agenda.

Some newspapers, including The Wall Street Journal and the Washington Times, noted early in their stories that Hamilton had been appointed to the bench by former President Bill Clinton, as if to suggest that that explained why her decision went the way it did. This gave the reader little time to digest and understand the ruling on its own terms before losing it to the political fray

Only the Los Angeles Times pointed out that it was Justice Sandra Day O’Connor, a Reagan appointee, who laid out the constitutional standard for any restriction on abortion upon which Hamilton relied in reaching her decision. As the paper noted, O’Connor, in the case Carhart v. Stenberg, ruled that any restriction on abortion had to be specific enough not to place an undue burden on a women’s right to choose, had to explicitly describe the banned procedure and had to contain an exception for the woman’s health.

Little would you realize it from reading many press accounts, but these were the very tests Hamilton relied on in reaching her decision.

Sheila Gibbons is editor of Media Report to Women, a quarterly news journal of news, research and commentary about women and media. She is also co-author of "Taking Their Place: A Documentary History of Women and Journalism," Strata Publishing, Inc., which in February 2004 received the "Texty" Textbook Excellence Award from the Text and Academic Authors Association, and of "Exploring Mass Media for A Changing World," Lawrence Erlbaum Associates, Publishers.



For more information:

Seattle Times, "A clear victory for women’s choice," June 2, 2004:

The Washington Post, "A healthy decision," June 5, 2004:

The Washington Times, "Impeach Judge Hamilton," June 3, 2004: