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Partial-birth abortion

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It has been suggested that this article be merged with Late-term abortion. (Discuss)

Partial-birth abortion (PBA) is a layman's term used to refer to some late-term abortion procedures. The term is widespread among the public and is favored by the pro-life movement. The procedure and the term "partial-birth abortion" are controversial. The term was coined in 1995 by congressman Charles Canady (R-Fla) and is primarily used in political discourse — chiefly regarding the legality of abortion in the United States.

While the term "partial-birth abortion" mainly refers to the "Intact dilation and extraction" ("IDX" or "Intact D&X") abortion procedure, in broader contexts it is sometimes applied to dilation and evacuation (D&E) procedures. Though sometimes performed during the same developmental stage wherein most IDX procedures are done, D&E is a separate procedure. Proponents of the PBA term have not applied the term to IDX procedures in the case of miscarriage, or to D&E abortions.

The so-called "partial-birth" abortion procedure represents a minority of the estimated 18,000 terminations per year past 21 weeks in the USA ; IDX is only one of several procedures used in the late stages of pregnancy when the fetus may be viable. IDX is used to abort approximately 2,200 pregnancies each year in the USA and a vast majority of those are performed before viability. In 1997, the former Executive Director of the National Coalition of Abortion Providers, Ron Fitzsimmons, claimed the procedure is "primarily done on healthy women and healthy fetuses".


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 proposed 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 bill that sought to ban the procedure. Both are political terms coined by opponents of the procedure.

Controversy

Partial-birth abortion is particularly a target of pro-life advocates because they believe the procedure most clearly illustrates their contention that abortion, and especially late-term abortion, is immoral. Critics consider the procedure tantamount to infanticide or murder, a position which many in the pro-life lobby extend to cover all terminations. Many advocates, both pro-choice and pro-life, see the PBA issue as a central battleground in the wider abortion debate, representing an attempt to set a legal precedent so as to gradually erode reproductive rights.

The IDX procedure itself is also controversial. Dr. Martin Haskell, who made the National Abortion Federation presentation, called it "a quick, surgical outpatient method" for late second-trimester and early third-trimester terminations. The Partial-Birth Abortion Ban Act of 2003 describes it as "a gruesome and inhumane procedure that is never medically necessary" , although pro-choice groups argue that it is more humane than D&E, the most common second-trimester abortion method, and doctors have questioned the assertion that it is never medically necessary.

There is debate over the term as well as the procedure. Those who support the term's use, typically supporters of legislation to limit or completely ban the IDX procedure, say it is an accurate and easily understood description of the procedure. Those who oppose the term point out that it 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. 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 dilation and curettage for various conditions of the uterus unrelated to termination.

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; they state that the risks of the procedure are less than the risks associated with childbirth and c-section. Opponents claim that IDX subjects women to unnecessary risks "for the convenience of the physician".

The IDX 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

Since 1995, led by Congressional Republicans, the United States House of Representatives and U.S. Senate have moved several times to pass measures banning the procedure. Congress passed two such measures by wide margins during Bill Clinton's presidency, but Clinton vetoed those bills in April 1996 and October 1997 on the grounds that they did not include health exceptions. Subsequent Congressional attempts at overriding the veto were unsuccessful.

In 2003, however, opponents of the procedure succeeded in getting the Partial-Birth Abortion Ban Act (HR 760, S 3) signed into law; the House passed it on October 2 with a vote of 281-142, the Senate passed it on October 21 with a vote of 64-34, and President George W. Bush signed it into law on November 5. The bill defines partial-birth abortion 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

Note that this definition of "partial-birth abortion" is not equivalent to "intact dilation & extraction," and covers a different range of procedures. The bill does not ban intact D&X when the fetus is already dead, making it clear that it is not a medical technique that is the issue, but the purposeful abortion of a fetus that is unacceptable, as it is perceived by many to be only inches away from classic infanticide. This infanticide protection enhancement was also addressed in the Born-Alive Infants Protection Act which protects babies who are born as the results of faulty abortions.

The Act includes an exception for the life of the woman, but explicitly not for non-life-threatening health issues; the relevant text reading:

Sec. 1531. Partial-birth abortions prohibited
(a) ... This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

Opponents of the law believe that this exception is far too narrow, arguing, among other things, that an abortion may be justified if a woman's health, and not just her life, is in danger.

Beginning in early 2004, the Planned Parenthood Federation of America, the National Abortion Federation, and abortion doctors in Nebraska challenged the ban in United States District Courts in San Francisco, New York, and Lincoln, Nebraska, respectively. All three District Courts ruled the ban unconstitutional that same year, and their respective appellate courts (Ninth, Second, and Eighth) affirmed these rulings on appeal. In upholding the Nebraska court's ruling in 2005, the Eighth Circuit states that the law is facially unconstitutional, meaning the ban is unconstitutional in all circumstances. This decision awaits further appeal, as the U.S. Department of Justice has requested the Supreme Court to review the lower court's decision. That request was granted on February 21, 2006.

State law

Many states have bans on late-term abortions which apply to the IDX procedure if it is performed after viability.

Many states have also passed bans specifically on the IDX procedure. The first was Ohio, which in 1995 enacted a law that 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 and 2000, 28 more states 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 unenforceable 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."

Notes

  1. Dilation & Extraction (PBA) Procedure. religioustolerance.org. Accessed April 15, 2006.
  2. D & X/PBA Procedures: Introduction. religioustolerance.org. Accessed April 14, 2006.
    Unconstitutional "Partial-Birth" Abortion Ban. Religious Coalition for Reproductive Choice. Accessed April 14, 2006.
  3. Alex Gordon. "The Partial-Birth Abortion Ban Act of 2003". Harvard Journal on Legislation. Volume 41, Number 2, Summer 2004. (see footnote 15)
  4. Abortion Bans: Myths and Facts. aclu.org. Accessed April 14, 2006.
    Stenberg v. Carhart, 530 U.S. 914 (2000)
  5. Abortion Incidence and Services in the United States in 2000, Guttmacher Institute. Accessed April 15, 2006.
  6. New York Times, 2/26/1997.

See also

External links

Legislation, Testimony, and Court Decisions

Commentary

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