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Partial-birth abortion (PBA) is a controversial term sometimes used to refer to "Intact dilation and extraction" ("IDX" or "Intact D&X"). The term is not a medical one but one invented primarily for use in public, political, and legal discourse — chiefly regarding the legality of abortion in the United States.

While the term "Partial Birth Abortion" mainly refers to IDX procedures, in broader contexts it is sometimes applied to dilation and evacuation (D&E) procedures. Though often performed during the same developmental stage wherein most IDX procedures are done, D&E is a separate procedure. The IDX procedure can also be used in late-term miscarriage cases, proponents of the PBA term would likely not apply the term to IDX in these cases.

Etymology

The "Dilation and Extraction" procedure was developed by Dr. James McMahon in 1983 . It was first described by Cincinnati physician W. Martin Haskell, MD in a monograph that was distributed by the National Abortion Federation in September of 1992 . Haskell's description became even more publicized when Jenny Westberg used his monograph to illustrate the procedure in a series of simple cartoons that anti-abortion proponents reprinted and distributed in national campaigns about the procedure.

The term "partial-birth abortion" appeared several years later. The term's first use is arguably from the original Partial-Birth Abortion Ban, which circulated in discussion through the first half of 1995 and was formally introduced by then Florida Republican congressman Charles T. Canady on 14 June 1995 . Keri Folmar, the lawyer responsible for the bill's language, says the term developed in early 1995 in a meeting between her, Charles T. Canady; and National Right to Life Committee lobbyist Douglas Johnson . According to a Lexis Nexus search, the term's first use in the media came on 4 June 1995 in a Washington Times article covering the bill and other attacks on the procedure.

A more graphic term "brain suction abortion," was previously used in an Ohio law that attempted to ban the procedure. The term "brain suction abortion" is similar to "partial-birth abortion" in that it is a political term created by opponents of the procedure.

Controversy

Often the debate over Partial Birth Abortion is about the actual term as well as the procedure. Those who support the term's use say it describes a specific type of abortion in a way that more accurately represents their view of the procedure. These individuals are often supporters of legislation that would limit or completely ban the IDX procedure. Others — usually those that oppose additional legal restrictions on abortion procedures — point out that the term is a political invention, used to frame the argument in a way favorable to those who seek greater legal restrictions (or an outright ban) on abortion.

The IDX procedure itself is highly controversial. The man who made the National Abortion Federation presentation, Dr. Martin Haskell, 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. 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. Many doctors and pro-choice groups dispute 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. The 1973 Supreme Court decision Roe v. Wade, which declared many state-level abortion restrictions unconstitutional, allowed states to impose certain 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 woman, 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 most attempts to legislate restrictions on abortion to be in violation of Roe v. Wade. See below for exceptions.

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. Supporters of a ban on such abortions also claim that partial-birth abortion subjects women 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 unrelated to abortion.

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 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 woman, 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 woman. 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 woman. Opponents of the current bill say that its failure to include these protections make it incompatible with former 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 woman. 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.

Three Appeals Courts (the Second, Eighth, and Ninth Circuits) have ruled that the current ban is unconstitutional because, among other things, the Stenberg decision requires a stricter exemption for the health of the woman. In January 2006 the Ninth Circuit found the law unconstitutional on three independent grounds. On the same day, the Second Circuit rejected the law as unconstitutional but deferred the question of remedy. The Eighth Circuit found the law unconstitutional in July 2005, though the U.S. Department of Justice has requested a review by the Supreme Court. On February 21, 2006, the Supreme Court granted the United States' petition for certiorari. The Court will hear argument in the case in the fall of 2006.

The Ninth Circuit decision affirms the California District Court decision 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. In the Second Circuit, the New York Disctrict Court ruling applies to doctors affiliated with the National Abortion Federation, accounting for more than half of the doctors across the country that perform abortions. In upholding the Nebraska District Court's decision, the Eighth Circuit 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 woman's life is in danger, four other states allow late-term abortions only when the woman's 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 pre-viability 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 woman. 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 woman. 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 unconstitutional 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. But, while this would radically change the state law, it is obviously unconstitutional under Stenberg, Casey and Roe.

See also

External links

Legislation, Testimony, and Court Decisions

Commentary

Interest Groups

Other

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