Partial-birth abortion: Difference between revisions

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Partial birth abortion (PBA) refers to most intact dilation and extraction (IDX) procedures where the fetus is alive at the time of the procedure — thus resulting in an abortion of the fetus. IDX procedures are also called dilation and extraction (D&X), intact dilation & evacuation (Intact D&E, or IDE), and Intrauterine Cranial Decompression (for the purposes of this article, IDX will be the term of choice). While the term "Partial Birth Abortion" largely refers to IDX procedures, in broader contexts the term is sometimes applied to dilation and evacuation (D&E) procedures. Though often performed during the same developmental stage wherein most D&X procedures are done, D&E is a separate and distinct procedure from IDX. A D&E procedure differs in that the fetus is killed during the process of dismemberment before leaving the womb, rather than being extracted intact.

The IDX procedure can also be used in late-term miscarriage cases. Two of the most well-known abortion practitioners who perform the IDX procedure, Dr. Martin Haskell and Dr. Leroy Carhart, have confirmed that in most cases the fetus is alive when the abortion procedure begins. Although accurate statistics detailing the number of partial birth abortions performed annually in the United States are not available, the number is usually estimated in the low thousands, comprising a small fraction of annual abortion procedures in the United States. Although not a proper medical term, partial-birth abortion is commonly used in public discussion of the procedure. Partial-birth abortion has been a central issue in the greater abortion debate.

Etymology

The procedure was first described as "Dilation and Extraction" by Cincinnati physician W. Martin Haskell, MD in a monograph that was distributed by the National Abortion Federation in September of 1992. .

The term partial-birth abortion did not appear until several years later, when the Partial-Birth Abortion Ban Act of 1995 was introduced in the House of Representative on 14 June 1995. The law defined partial-birth abortion as "an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery." That same year; however, Ohio enacted a law which referred to the procedure as dilation and extraction. In 2000, Ohio amended the law to use the term partial birth feticide, as well as to overcome the unconstitutionality of the prior statute. There are limited other examples of the use of the term partial birth feticide.

Another alternative term is brain suction abortion, the use of which has been mostly limited. Specifically, pro-life activist Janet Folger has used the term to describe the procedure.

Controversy

Often the debate over partial-birth abortion is over the name for this type of abortion, as well as the procedure itself. Those who support using the term say it describes a specific type of abortion in a phrasing that better represents what happens during the procedure. Those who oppose using the term say that the term is a deceptive political term invented to frame the argument in a way favorable to those in opposition to the procedure.

The procedure is highly controversial. Supporters of the procedure argue that its use should be left to the discretion of the woman and her doctor — even in third-trimester cases. The inventor of the procedure called it "a quick, surgical outpatient method" for late second-trimester and early third-trimester abortions. Pro-life critics of the procedure consider it tantamount to infanticide or murder, and the Partial-Birth Abortion Ban Act of 2003 describes it as "a gruesome and inhumane procedure that is never medically necessary" - at the same time as pro-choice groups argue that it is more humane than D&E, the most common second-trimester abortion method. Congress also made the declaration in this act that the procedure was "never medically necessary". Having made this claim without performing independent peer-reviewed scientific research, this has caused a dispute about the proper behavior of Congress in and of itself, and many doctors and pro-choice groups disagree with the claim.

Many pro-choice and pro-life advocates see the issue as a central battleground in the wider abortion debate.

A major part of the legal battle over banning the procedure relates to health exceptions, which would permit the procedure in special circumstances. In theory, the 1973 Supreme Court decision Roe v. Wade, which declared many state-level abortion restrictions unconsitutional, allowed states to impose some restrictions on second- and third-trimester abortions. The companion ruling, Doe v. Bolton, required that states' restrictions on abortions must provide an exception for the health of the mother, and defined health to include mental as well as physical health, though in his concurring opinion Chief Justice Burger wrote, "plainly, the Court today rejects any claim that the Constitution requires abortions on demand". In practice, the Supreme Court has found virtually every legislative restriction on abortion to be in violation of the "right" to an abortion created by Roe v. Wade. See below for exceptions.

The New York Times has quoted Ron Fitzsimmons, Executive Director of the National Coalition of Abortion Providers, as saying that "in the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along." Pro-life advocates feel that this allowance for the procedure is an example of an excessive leeway in the interpretation of standards set in Roe v. Wade. Likewise, well-known abortionist George Tiller, while addressing the National Abortion Federation, stated that during the course of five years his practice performed abortions for "about 10,000 patients between 24 and 36 weeks" with only about "800 fetal anomalies between 26 and 36 weeks."

Supporters of late-term abortion procedures argue that they prevent the pregnant woman from having to undergo childbirth or abdominal and uterine incisions of a caesarian section (c-section) when the child would not survive. However, the inventor of the procedure has stated that most partial-birth abortions are elective . Supporters of a ban on such abortions also claim that partial-birth abortion subjects mothers to unnecessary risks for the convenience of the physician . Critics of the ban, in contrast, claim that the risks are less than the risks of childbirth or of a C-section. Partial-birth abortion is particularly a target of pro-life advocates because they believe the procedure most clearly illustrates why abortions, and especially late-term abortions, are immoral.

Opponents of a ban on the procedure have also argued that the definition of such a ban is so vague that the law would have a chilling effect on physicians performing any abortion or other gynecological procedures such as D&C (dilation and curettage), used for various conditions of the uterus.

Some who want the procedure to remain legal in the United States claim that the ban is based on religious views about when life begins. They consider the Bible as the basis for any efforts to restrict abortion in the US, and from there they argue that to rely on a religious text to determine when the life of a child begins is misguided because different cultures and religions have differing views on the subject. However it is undisputed that many laws in the United States are based on religious values, and that many world religions condemn abortion on demand and consider abortion acceptable only in very limited circumstances (Judaism: ; Islam: ; Hinduism:; Buddhism: ; Sikhism:; Catholicism:; Anglicanism: ). Likewise, some atheists are also opposed to abortion. Not all religions that oppose most abortions support legislative bans. Conservative, Reform, and Reconstructionist branches of Judaism, for example, are formally opposed to government regulation of abortion. They feel the procedure should be available to those women who, in consultation with their clergyperson, choose it ].

Surgical procedure

See Intact dilation and extraction for a complete description of the procedure.

Law in the United States

George W. Bush signing the Partial-Birth Abortion Ban Act of 2003, surrounded by members of Congress.

Federal Law

On November 5, 2003, President George W. Bush signed the Partial-Birth Abortion Ban Act (HR 760, S 3), which defined partial-birth abortions as:

an abortion in which --

(A) the person performing the abortion 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; and

(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus

Opponents of the ban claim that this definition could include even the first-trimester vacuum aspiration of embryos through the vaginal canal. Supporters of the PBA Ban deny this, and point to the "Findings" section, which describes the procedure as "an abortion in which a physician delivers an unborn child's body until only the head remains inside the womb, punctures the back of the child's skull with a sharp instrument, and sucks the child's brains out before completing delivery of the dead infant."

The Partial-Birth Abortion Ban Act (PBA Ban) included an exception for the life of the mother, but not for non-life-threatening health issues. The authors believed that they adequately addressed this in the findings section of the legislation because they included a large amount of supporting documentation -- including a statement by the American Medical Association (AMA) -- which the bill's authors and supporters argue demonstrate that there is no medical situation where this procedure is necessary to preserve the physical health of the mother. Supporters of the right to partial-birth abortion dispute these conclusions.

During his time in office, President Bill Clinton twice vetoed legislation that would have banned partial-birth abortion stating that it did not include sufficient protections for the health of the mother. Opponents of the current bill say that its failure to include these protections make it incompatible with retiring Justice Sandra Day O'Connor's concurring opinion in the 5-4 Stenberg v. Carhart decision (2000), in which the Supreme Court struck down a Nebraska law banning the procedure. O'Connor stated that any ban would have to include an exception for the health of the mother. Broadly worded health exceptions in abortion legislation, of the form which are allowed by the Supreme Court under the Roe v. Wade standard, have previously been interpreted by many American courts to include psychological health, which opponents of the procedure contend is so vague that it renders any attempt at prohibiting abortions toothless.

Federal judges in San Francisco, New York and Lincoln, Nebraska have ruled that the current ban is unconstitutional because, among other things, the Supreme Court's Stenberg decision requires a stricter exemption for the health of the mother. While the San Francisco and New York decisions await appeals, the Nebraska decision has been upheld by the Eighth U.S. Circuit Court of Appeals.

The San Francisco decision states that the government is "permanently enjoined from enforcing the against plaintiffs Planned Parenthood" or any doctors working with Planned Parenthood in any way. This affects at least the 900 Planned Parenthood clinics located nationwide. The New York ruling applies to doctors affiliated with the National Abortion Federation, accounting for more than half of the doctors across the country that perform abortions. The Eighth Circuit ruling states that the law is facially unconstitutional, meaning it is unconstitutional in all circumstances, not just those related to the doctors directly involved in the suit. The law has not been successfully enforced anywhere.

State Law

While some state laws allow late-term abortions in only the most dire of cases under state laws — for example, where the fetus is severely malformed and dying — many of these restrictions are claimed by abortion supporters to be constitutionally invalid. As of February, 2005, 17 states had bans on post-viability abortions that abortion supporters say do not meet Supreme Court requirements: three states allow late-term abortions only when the mother's life is in danger, four other states allow late-term abortions only when the mothers physical (but not mental) health is in jeopardy, and 13 states ban all abortions performed after a certain point in pregnancy. Nineteen (plus the District of Columbia) allow them when necessary to preserve the woman's life, physical health, or mental health.

At least three states (Delaware, Minnesota, and Utah) have no current policy regarding post-viability abortions because the laws in those states are blocked by court order. Most or all of the remaining 47 states, plus the District of Columbia, impose some regulation on late-term abortion .

In 1995, Ohio enacted a law which referred to the procedure as dilation and extraction. In 1997, the United States Court of Appeals for the Sixth Circuit found the law unconstitutional on the grounds that it placed a substantial and unconstitutional obstacle in the path of women seeking previability abortions in the second trimester.

Between 1995-2000, 29 states had passed Partial-Birth Abortion bans, all similar to the proposed federal bans and all lacking an exemption for the health of the mother. Many of these state laws faced legal challenges, with Nebraska's the first to reach decision in Stenberg v. Carhart. The Federal District Court held Nebraska's statute unconstitutional on two counts. One being the bill's language was too broad, potentially rendering a range of abortion procedures illegal, and thus, creating an undue burden on a woman's ability to choose. The other count was the bill failed to provide a necessary exception for the health of the mother. The decision was appealed to and affirmed by both the Eighth Circuit and the Supreme Court on June 2000, thus resolving the legal challenges to similar state bans nationwide.

Since the Stenberg v Carhart decision, Virginia, Michigan, and Utah have introduced laws that remain virtually identical to the unconstitional Nebraska law. The Virginia and Michigan laws were similarly struck down due broadness and the failure to provide a health exemption, Utah's law remains pending trial, though is uneforceable due to a court-issued preliminary injunction.

In 2000 Ohio introduced another partial-birth abortion ban. The law differed from previous attempts at the ban in that it specifically excluded D&E procedures, while also providing a narrow health exception. This law was upheld on appeal to the Sixth Circuit in 2003 on the grounds that "it permitted the partial birth procedure when necessary to prevent significant health risks."

2005 Ohio House Bill No. 228, introduced in the Ohio House of Representatives, would make significant changes to state law regarding abortion. It would prohibit all abortions, but exempt from punishment the unintentional termination of a pregnancy resulting from medical treatment to a pregnant woman to preserve her life.