HHS Sec. Becerra denies existing law banning partial-birth abortions

Health and Human Services (HHS) Secretary Xavier Becerra, who is tasked with enforcing the nation's health care statutes, seemed to deny the existence of a Bush-era law banning partial-birth abortions.

During a hearing with the House Energy and Commerce Committee, Rep. Gus Bilirakis, R-Fla., asked Becerra whether he believed that partial-birth abortion was illegal. 

"We will continue to make sure we follow the law," Becerra answered. "Again, with due respect, there is no medical term like partial-birth abortion and so I would probably have to ask you what you mean by that to describe what is allowed by the law."

"But Roe v. Wade is very clear, settled precedent and a woman has a right to make decisions about her reproductive health and we will make sure we enforce the law and protect those rights," Becerra continued.

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Bilirakis followed up his first question by asking if Becerra agreed with the law on partial-birth abortion.

"Again, as I said," Becerra responded, "there is no law that deals specifically with the term partial-birth abortion. We have clear precedent in the law on the rights that women have to reproductive health care." Becerra, in fact, voted against that law as a representative from California when it passed in 2003.

While some have denied the existence of "partial-birth abortions," federal law defines the term as partially delivering a fetus for the purpose of killing it. 

Specifically it claims the term means "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."

It adds "performs the overt act, other than completion of delivery, that kills the partially delivered living fetus."

Becerra later suggested it was more appropriate to use the term "dilation and extraction." That particular procedure can entail partially extracting a baby from the uterus before puncturing its skull and suctioning out its brain matter.

Becerra’s critique of the "partial birth" phrasing was somewhat dubious, Dr. Christina Francis, who leads the American Association of Pro-life OB/GYN’s, indicated. 

"’Partial birth abortion', while not a medical term, is a clearly understood phrase, used not only in the federal law banning this procedure but also in the Supreme Court case that upheld this law.  The medical term for this procedure is intact dilation and extraction," she told Fox News.  

She added that it is a "common practice in medicine to use descriptive terms with patients rather than the exact medical nomenclature, in order to ensure they understand what we are speaking about - common examples include heart attack (instead of myocardial infarction) or miscarriage (instead of spontaneous abortion).  Whether you use the phrase 'intact dilation and extraction' or 'partial birth abortion' for the banned procedure, the reason it was banned in the first place remains the same - it is the barbaric killing of a living human being and has no place in the practice of medicine."

HHS did not immediately respond to Fox News' request for comment.

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The Susan B. Anthony List, which opposes abortion access, blasted Becerra on Twitter. Sen. James Lankford, R-Okla., said Becerra's answer was "absolutely horrifying."

"It’s absolutely horrifying that the top health official in the nation doesn’t even know the laws he swore to uphold and protect," the senator said.

Becerra's answer raised additional questions about an administration that anti-abortion advocates have repeatedly framed as radical on this issue. 

Biden's administration has committed to repealing the Hyde Amendment, which blocks most taxpayer funding for abortions, and codifying Roe v. Wade. Anti-abortion advocates like Susan B. Anthony List have maintained that Roe v. Wade effectively allows abortions up to the moment of birth.

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The decision in Doe v. Bolton, released on the same day in 1973 as Roe v. Wade, argued that life and health of the mother encompassed a wide range of reasons.  In his majority opinion, Justice Harry Blackmun wrote that "medical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman's age – relevant to the well-being of the patient. All these factors may relate to health."

While it's unclear when each abortion occurs, the Centers for Disease Control and Prevention has reported that at least 143 babies died between 2003-2014 in cases involving induced termination. The agency noted that could be an underestimate.