In an earlier post I discussed the Supreme Court’s analysis of the so-called Partial Birth Abortion Act, concluding that the Court’s decision to uphold the Act was intellectually dishonest and inequitable. This post is about the purposes of the Act, as described by Congress, and the Act’s probable consequences for the practice of medicine and the health of women.
Understanding the Act requires some minimal understanding about abortion procedures. (This explanation is more or less lifted directly from my earlier post on the Carhart decision.) The Act targets the procedure used in essentially all abortions taking place after first trimester and before viability. (Viability is the point in pregnancy when, given the current state of medicine, a premature infant has a fifty percent chance of survival. At present, viability occurs around the 23rd week.) The procedure is referred to as “dilation and evacuation” or “D&E”. A D&E is performed by first dilating the patient’s cervix for a period from a few hours to a few days. The physician then removes the fetus, placenta and related material from the uterus through the cervix, and out of the body. Often, the fetus must be removed from the uterus in pieces. Sometimes, though, the fetus can be removed from the cervix intact (called an “intact D&E” by the Court). Because the fetus is not destroyed during the intact D&E process, the physician must ‘kill’ (the word used in the Act), the non-viable fetus. The loaded term “partial-birth abortion” is thus an obvious mischaracterization of this procedure. The nonviable fetus cannot be “born,” either partially (whatever that might mean), or otherwise.
The Act makes it a crime for a physician to knowingly perform an abortion using the following procedure:
1. The physician removes the intact fetus from the woman’s body to a particular point:
In a head-first position, to the point where the entire head is outside the woman’s body;
in a breech (foot-first) position, where any portion of the fetus past the navel is outside the woman’s body; and,
2. The physician then takes an overt act that kills the fetus.
(This is my summary of the Act. The full Act can be found here.)
The Act provides no exception to preserve the health of the woman undergoing the procedure.
The Act won’t stop a single abortion from taking place. Justice Ginsburg noted during oral argument, “[W]e’re not talking about whether any fetus will be preserved by this legislation… It doesn’t preserve any fetus because you just [terminate fetal life] inside the womb instead of outside.” The US attorney defending the Act agreed with Justice Ginsburg. In other words, in order to be compliant with the Act, a physician must terminate the fetus’ life prior to delivery, even in cases where the physician believes it is safer for the mother to do otherwise.
Whether an intact D&E’ is considered medically necessary depends on a number of factors, including the age and health of the woman, especially if the woman has an underlying medical problem; the condition of the fetus; and the sophistication of the medical facilities available. Under the Act, a doctor is no longer allowed to make this decision. With the Act, Congress has overruled the the physician’s medical judgment, as well as her ethical obligation to provide the best possible medical care. Is appears the Hippocratic Oath has joined the Geneva Conventions as “quaint” obligations our government has decided can be ignored.
The trade-off Congress made in the Act and the Supreme Court appears hardly rational: Physicians must choose between following the law, on one hand, or providing the best possible care to preserve the health of the mother. What exactly has Congress achieved in return? Nothing, it seems. Abortions will not be reduced. But the Act will make abortions more dangerous and more difficult to obtain. Some physicians will likely withdraw from the practice of performing intact D&E’s rather than risk criminal charges. The health of some women will be harmed as a result, because they will not be able to obtain the best possible care. And, perhaps most troubling, those seeking to limit reproductive rights have established that their political agenda can override concerns about privacy, personal autonomy, and women’s health.