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On the Politics of Partial-Birth Abortion
In depth article on partial-birth abortion act by Cynthia Gorney.
By Cynthia Gorney
Editor's Update: Due to recent interest, I have added to this website my own views on the following article. The article from Harpers Magazine is particularly detailed and helpful in understanding the abortion debate in this country, so we are reprinting it below. The title was "Gambling With Abortion: Why both sides think they have everything to lose" and was posted on January 27, 2005, originally from November, 2004.
The Partial-Birth Abortion Ban Act of 2003, which is the only federal law ever to include the phrases “gruesome and inhumane” and “removing the baby’s brains,” was signed last November by George W. Bush and has just been declared unconstitutional by three separate U.S. District Court judges. Its next stop is the U.S. Circuit Courts of Appeal. If John Kerry wins the presidency, defending the ban will be a very low priority of the new attorney general; if Bush is reelected, the ban will be hauled vigorously toward the Supreme Court amid much anticipatory excitement about the possibility of new Bush appointees and the reshaping of American abortion law. In either case, the ban will have accomplished half its mission. This story is about that mission, and about how one abortion doctor and one right-to-life cartoonist helped set off the most sustained and rhetorically high-pitched battle in the forty-year history of this country’s abortion wars.
The Partial-Birth Abortion Ban does not prohibit what most people think it prohibits. It is not a late-abortion law. Apart from a single quoted remark in its “findings” section, which is a kind of declaratory preface, the ban contains no mention at all of third-trimester abortion, or of any gestational point in pregnancy. It criminalizes only by method, outlawing some actions during a pregnancy termination but not others, meaning that as practical legislation—isolated from its mission, that is, and considered solely as a directive on what physicians may and may not do in a procedure room—it makes clear ethical sense only to people who don’t spend much time thinking about abortion. Defending the Partial-Birth Abortion Ban in court, as teams of Justice Department lawyers were dispatched this spring and summer to do, requires arguing to judges that pulling a fetus from a woman’s body in dismembered pieces is legal, medically acceptable, and safe; but that pulling a fetus out intact, so that if the woman wishes the fetus can be wrapped in a blanket and handed to her, is appropriately punishable by a fine, or up to two years’ imprisonment, or both.
The term “partial-birth abortion” was invented for purposes of writing legislation. There is no textbook reference to any operative procedure or medical state called “partial birth.” There are a few published medical references to “dilation and extraction,” or “intact dilation and evacuation,” both of which are terms certain physicians have given to the forceps-aided extraction of an aborted fetus all in one piece. One technique for intact removal was described in detail in 1992, when an Ohio physician got up at a National Abortion Federation meeting, presented a paper entitled “Dilation and Extraction for Late Second Trimester Abortion,” and inadvertently triggered the cross-country chain of events that escalated into what Kate Michelman, the recently retired president of NARAL Pro-Choice America, now says was the most difficult abortion issue she was ever called upon to confront. “Silver platter” is another way this sentiment is sometimes expressed, among abortion doctors and abortion-rights advocates, or “gift-wrapped.” By this they mean the swiftness, the devastating ease, with which they found themselves ceding their opponents control over the public imagination the month the first Partial-Birth Abortion Ban Act was introduced in Congress, nearly a decade ago.
“James was the one who came to tell me,” Michelman recalls, meaning James Wagoner, NARAL’s executive vice president during the summer of 1995, when two Republican members of Congress sent out a “Dear Colleague” letter soliciting co-sponsors for a bill that would make one particular form of abortion a crime. The letter read, in part:
During the partial-birth procedure, the abortionist uses forceps to pull a living baby feet-first through the birth canal until the baby’s body is exposed, leaving only the head just within the uterus. The abortionist then forces surgical scissors into the base of the baby’s skull creating an incision through which he inserts a suction tube to evacuate the brain tissue from the baby’s skull. The evacuation of this tissue causes the skull to collapse, allowing the baby’s head to be pulled from the birth canal. Vocabulary choices notwithstanding— “partial-birth,” “abortionist,” “living baby”—this was, technically, a fairly accurate summation of the Ohio doctor’s surgical process for removing a fetus intact. A state version of the criminalizing bill had already been drafted in Ohio; in that legislation, the descriptive terminology was “brain suction abortion.” The procedure appeared to be unique to the United States, where since January 1973 abortion law and politics have resembled that coffee table game in which players sit opposite a tower of wooden blocks and tug tentatively at individual pieces inside the tower, trying to anticipate the single move that will cause the entire structure to fall down.
“I remember us sitting in my office,” Michelman recalls, “and James saying to me: ‘Kate. This is a disaster.’”
* * *
The federal trials challenging the Partial-Birth Abortion Ban began on March 29, in three separate courtrooms: one in Manhattan; one in Lincoln, Nebraska; and one in San Francisco. If not for the time-zone difference and a brief delay in Lincoln, so that an abortion doctor appearing under a “Dr. Doe” pseudonym could testify from an undisclosed location, the proceedings would have commenced simultaneously, like a split-screen movie sequence—three robed judges ascending to their benches, dozens of attorneys rising to their feet, reporters lined up along the wooden courtroom seats, television trucks parked outside. The defendant in each of the three cases was John Ashcroft, “in his official capacity as Attorney General of the United States,” as the legal documents put it. The plaintiffs were abortion providers, in various configurations: four physicians, in the Nebraska case; the National Abortion Federation and seven physicians, in the New York case; and in the San Francisco case, both the Planned Parenthood Federation and the City and County of San Francisco, whose general hospital contains an abortion clinic.
In San Francisco, where the judge had dispensed with opening statements, the first witness was a physician named Maureen Paul. Paul is a small, slender woman with very short blonde hair; she is an OB-GYN who teaches abortion practice and was the lead author of a recent medical textbook on abortion. In court she wore a black jacket and pants. Her manner was composed. The Planned Parenthood lawyer, Eve Gartner, was asking her about procedures performed on women whose pregnancy had passed the first trimester. Gartner asked Paul to explain the steps in a typical dilation and evacuation, which is the most common method for second-trimester abortion, and is generally referred to as D&E.
“Can I use the diagram?” Paul asked.
Propped beside the witness stand was a large cross-section of the female reproductive organs.
Paul indicated the cervix, the uterine opening, where, in a D&E patient, several dilators called laminaria would have been inserted the day before and left to swell. “I use a small forceps to remove the laminaria, if they are in place,” she said, and then explained how that was done. “I break the bag of water, either by just breaking it and allowing it to drain—the fluid to drain out—or using suction.”
Gartner nodded. “And when you begin the evacuation, is the fetus ever alive?”
“Yes,” Paul said.
“How do you know that?” Gartner asked.
“Because I do many of my procedures, especially at sixteen weeks, under ultrasound guidance, so I will see a heartbeat,” Paul said.
“Do you pay any attention to that, while you are doing the abortion?” Gartner asked.
“Not particularly,” Paul said. “I just notice it sometimes.”
No one in the courtroom reacted in any discernible way, and Paul’s voice remained clear and direct. Gartner asked what she did next. “I evacuate the fetus,” Paul said. Gartner asked how that was done. “I insert the forceps, and grasp the fetus, and pull,” Paul said. “And sometimes the fetus comes out in pieces, and I make instrument passes until the entire fetus is evacuated, and sometimes the whole fetus will come down into the vagina, at least as far as the head.”
Gartner asked whether it was advantageous to complete the evacuation quickly, and Paul said that it was, because this reduced bleeding and discomfort for the woman, and because she thought it safest to insert instruments into the uterus the fewest possible number of times. “And you had said that sometimes, when you apply traction to the fetus, it comes out intact up to a point where the calvarium lodges,” Gartner said. “Is that correct?”
“Calvarium” is Latin for “skull.” “Yes,” Paul said.
“In that circumstance, what do you do to complete the procedure?” Gartner asked.
“There are two things you can do,” Paul said. “You can disarticulate at the neck.” She made a tiny up-and-down gesture with one hand. “Or what I prefer to do is to just reach in with my forceps, and collapse the skull, and bring the fetus out intact.”
“So when you—” Gartner paused to rephrase. “In the first scenario, where you disarticulate, would you consider that to be an intact D&E?”
“No,” Paul said.
At the break, everybody got up and went into the hall. Among the murmuring groups outside the courtroom door, a big-shouldered man in a dark jacket could be heard saying quietly to the man beside him, both their faces expressionless: “Disarticulate.” In the evening one of the reporters covering the trial telephoned me at home; someone had suggested he talk to me, he said, because I had written a book about the abortion conflict. He had some questions about wording. He said he had not heard second-trimester abortion described in detail before. He sounded pretty upset. “I never,” he said, and stopped.
Never what, I asked.
“I never really thought about this before as anything beyond the right to choose,” he said.
“You’re why they wrote this bill,” I said.
* * *
In right-to-life ethical reasoning, a seven-weeks-pregnant abortion is as unacceptable as a thirty-weeks-pregnant abortion. Distinguishing between them, for someone who has fully absorbed the right-to-life view, is like distinguishing between the killing of two-year-olds and the killing of eight-year-olds. “Live human being” is a yes-or-no proposition, according to this way of seeing things; the premise that there exists some in-between form of life (a not-quite human being, a being still under construction) is regarded as misguided, self-serving rationalization.
But it’s also acknowledged, in right-to-life circles, that many Americans—possibly most Americans, judging by the deep ambivalence that consistently shows through in abortion polling—seem to cling to that premise anyway. Polled Americans are all over the place on legal abortion, and have been for several generations: they don’t want it outlawed; they don’t want it unrestricted; they think it’s a woman’s private decision but they disapprove, often agreeing to some version of the statement “should not be legal under these circumstances” when presented with nearly all the reasons women commonly give for seeking abortions. Warring vocabularies have buffeted most Americans into a defensive crouch when the topic of abortion is raised; half the time they can’t remember which side uses “pro-choice” and which uses “pro-life,” and what exactly it was that Roe v. Wade changed, and why they’re being obliged to think again about the whole conundrum when they thought it had finally been put to rest.
What the ambivalent and unconvinced need, from the perspective of the indefatigable right-to-life tactician, is visuals—literal visuals, to shock people from complacency; and verbal descriptions that force people to keep picturing what actually takes place in an abortion-procedure room. This has been the primary mission of the Partial-Birth Abortion Ban. There is long-term legal strategy at work, too, and practical thinking about ways to discourage abortion doctors from going about their business, but the ban—like its offshoot, the Unborn Child Pain Awareness Act, introduced late this spring in both the House and the Senate—is fundamentally an image-manipulation campaign. The account of its evolution as the most vivid and effective image-manipulation campaign in the history of the right-to-life effort begins at that 1992 NAF meeting, in Dallas, when a doctor and clinic owner named Martin Haskell decided that other physicians might want to learn about the procedure he was using, “routinely,” in Haskell’s words, for patients who were twenty to twenty-four weeks pregnant. “The author has coined the term Dilation and Extraction,” Haskell wrote, in the paper accompanying his presentation, “or D&X.”
Twenty to twenty-four weeks: note the time frame. Second trimester of pregnancy. Viability, the point at which premature infants are expected to have at least a marginal chance at survival, is now usually set at somewhere between twenty-three and twenty-eight weeks. “It can be used successfully in patients 20‒26 weeks in pregnancy,” Haskell wrote of his D&X technique. “The author has performed over 700 of these procedures with a low rate of complications.”
There was a brief recap, in Haskell’s paper and in an oral presentation before the doctors in Dallas, on conventional methods of later abortion—abortion on pregnancies too advanced for simple vacuum aspiration, which usually means after about thirteen weeks. To terminate pregnancies of up to twenty weeks, Haskell reminded his colleagues, surgeons typically perform a “classic D&E,” in which the doctor dismembers the fetus inside the uterus, using forceps, and pulls it out in pieces. After twenty weeks, when classic D&E is usually hard to accomplish because the fetus’s bones are too strong and the tissues are too tough, the standard procedure is either induction abortion, in which the woman is put through a drug-induced miscarriage, or in some cases a form of D&E in which a feticide is injected into the uterus and the dead fetus is then left inside long enough to soften, making it easier to take apart.
Then Haskell explained how a D&X is done.
The process takes several days, he wrote, starting with the sequential insertion of numerous dilators to open the patient’s cervix. The patient is sent home, or to a motel, overnight. On the third day, using ultrasound for guidance, “the surgeon,” as Haskell referred to himself, uses forceps and his fingers to pull the whole fetus through the vagina.
The skull lodges at the internal cervical os. Usually there is not enough dilation for it to pass through. The fetus is oriented dorsum or spine up. . . . The surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down, along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger.
Reassessing proper placement of the closed scissors tip and safe elevation of the cervix, the surgeon then forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge the opening.
The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely from the patient. * * *
Martin Haskell, who ran clinics in Cincinnati and Dayton, was not the only physician in the early 1990s who had figured out how to use dilation and forceps to pull out an aborted fetus in one piece. At that seminar presentation were a number of second-trimester specialists who had accomplished intact extractions from time to time over the years (“He was telling me nothing new; that technique of puncturing the skull had been done for hydrocephalics for years,” one doctor recalls), and among the audience members was a Los Angeles physician named James McMahon, who had made a specialty of performing late intacts and then bringing the fetuses to women who had asked to see them. “Having it intact was a goal, so they could do that, and have this closure,” recalls McMahon’s widow, Gale McMahon, a nurse who helped run McMahon’s practice until he died of complications from a brain tumor in 1995. “I knew what it meant to these women, to be able to hold them, and be able to coo over them and say goodbye. It was profound. I got material, and sewed little tiny sheaths, and we got tiny hats we could dress them in. I would put them on a clean cloth, and I would swathe them. Many women spent hours in there, and showed them to their other children. It was always treating the babies with the respect the parents would want them to.”
McMahon was proud of his technique, which he regarded as not only humane but also safer than dismemberment, since it reduced bleeding and kept a physician from having to pull sharp bone fragments out of the uterus. He had talked about it to other physicians, including Haskell. But no one had ever written as detailed and clear a set of intact extraction medical instructions as Haskell was now providing, and his paper, reprinted into a volume of the session’s proceedings, was in right-to-life hands within a matter of weeks. The NAF mailing list had long since been infiltrated by abortion opponents, and one of the recipients of the Dallas seminar book was a homemaker and occasional clinic protester named Jenny Westberg, who lived in Oregon, contributed from time to time to a strident little Portland-based magazine called Life Advocate, and happened to have some experience at cartooning. (Westberg’s first submission to Life Advocate had been a “Little Nell tied to the train tracks” political cartoon: clinic protesters rushing to rescue Little Nell, and the police stopping them all, to arrest them for trespass, as the train bore down.) It was Westberg’s idea, upon reading Haskell’s paper, to write about it for Life Advocate, and to illustrate her article with drawings of her own.
To understand what happened next—why, of all the medical presentations offered every year by American abortion doctors, Martin Haskell’s should be the one to set off six congressional hearings, federal legislation, multiple lawsuits, and more than thirty state bills prohibiting “partial-birth abortion”—it helps to put a kind of magnifying glass to Jenny Westberg’s drawings, which were in pen and ink, and simplified, like cartoons. There were five of them. They showed a uterus in cross-section, two gloved adult hands, and an undersized baby (“five months’ gestation, for fairness,” Westberg recalls) being pulled out by one leg, just up to the shoulders, and then punctured with scissors in the back of the head. The issues of Life Advocate containing Westberg’s drawings were mailed to subscribers in early 1993, and when more mainstream organizations such as the National Right to Life Committee saw them, the pictures were modified slightly and then reprinted at once into newspaper advertisements and millions of widely distributed brochures. Their extraordinary impact, which continues to this day, bewilders even Westberg. “I had no idea the pictures were going to be made available internationally,” she says, “or that they were going to be shown in Congress.”
Even before Roe v. Wade, when the right-to-life effort was mostly statehouse agitation to keep legislatures from changing their criminal abortion laws, abortion opponents had learned that the surest way to win converts was to stop talking and show pictures. For years, any good right-to-life recruiter knew enough to order a set of the photo collection assembled by Jack and Barbara Willke, the Ohio doctor-and-nurse couple whose paperback “Abortion Handbook” was the talking-points bible of the anti-legalization movement. Most of the photos were closeups of just-aborted fetuses, and to this day, when asked whether there was an epiphany that pulled them into the movement, many right-to-life veterans will recall their first look at the Willke pictures. “The gross pictures,” one Texas right-to-life worker in her thirties calls them, remembering having viewed the photos in high school. “The graphic pictures of aborted babies.”
As emotional closers for the ambivalent, though—not simply curious people inclined to sit through a right-to-life slide show, in other words—the graphic pictures never worked quite the way they were supposed to. They were sickening, which was the reason they were so powerful; the Willkes once likened them to the Vietnam War photos of the My Lai massacre. But newspapers wouldn’t print the abortion pictures, because of the way in which they were sickening; and brandishing the pictures on protest signs, which so many abortion opponents had supposed would make the waffling American majority shut up about social or personal justifications and just see what it was they were all talking about, proved weirdly counterproductive as well: the medical realities they depicted—the bloody tissue, the ripped-off arms and legs, the fetuses corroded by fluids injected to induce abortion by miscarriage—made for what right-to-life people came to regard as a collective averting of the eyes.
But there was no gore in Westberg’s pictures. They were gruesome but not gory, which proved to be a critical distinction. The fact that they were cartoonish line drawings made them widely reproducible without the aversion factor; and more to the point, the Westberg pictures made D&X compelling to look at for the very reason Martin Haskell had wanted to tell his colleagues about it: the fetus was intact. It looked human. It looked human and helpless and small, and the rendering of the scissors and suction catheter made visible, as far as the viewer was able to discern, the instant of the ending of its life. “To think that a human being would actually hold a little baby in his or her hand, and then kill it—that’s what got me,” recalls Keri Folmar, the congressional lawyer (her name was then Keri Harrison) who wrote the original Partial-Birth Abortion Ban. “If you’re holding that child in your hand, and knowingly killing the child, you can’t argue any more that it’s not really a human being. You just can’t do it.”
* * *
The label “partial-birth abortion,” Keri Folmar says, emerged from a meeting that included herself; her boss, the Florida Republican congressman Charles Canady; and the longtime National Right to Life Committee lobbyist Douglas Johnson. “We called it the most descriptive thing we could call it,” Folmar recalls. “We were throwing around terms. We didn’t want it to be inflammatory. We wanted a name that rang true.”
This was in early 1995, in Washington, D.C., two years into Bill Clinton’s presidency. The Westberg pictures had already been put to use once—“Do these drawings shock you? We’re sorry, but we think you should know the truth”—in a 1993 national publicity campaign against the Freedom of Choice Act (FOCA), a bill that would have amplified the provisions of Roe v. Wade into a federal abortion law. After Republicans took over Congress in 1994, FOCA vanished. Folmar, who had previously done legal work for the National Right to Life Committee, was now dispatched by Canady to take advantage of the next tactical opening presented by the published descriptions of D&X. “I mean, abortion advocates never want to talk about what’s happening in an abortion,” Folmar says. “They generally don’t even want to say the word ‘abortion.’ And another goal—this is just another point that I wanted to see happen—was to get this bill before the Supreme Court.”
* * *
A four-point crib sheet on right-to-life abortion legislation in the post-Roe United States:
1. Nearly all of it is written with an eye toward reaching the Supreme Court. Most never does. But if abortion-rights lawyers can be provoked into a constitutional challenge, any case might be appealed, and might wind up before the Supreme Court, which might at that point be ready, because the right justices have either been replaced or had a change of heart, to reverse Roe v. Wade.
2. Abortion partisans know things about Roe that other people generally don’t, and one is what the ruling said about abortion late in pregnancy. Two Supreme Court rulings were handed down simultaneously on January 22, 1973: Roe v. Wade, which found the Texas criminal abortion law unconstitutional; and Doe v. Bolton, which overturned the marginally liberalized abortion law in Georgia. Taken together, as they were meant to be, the rulings declared that states could ban abortion only after viability (there was no specification as to when viability occurs). But even post-viability bans, the Court declared, must permit any abortion a doctor decides is necessary to save the life or the health of the mother. In Doe, the Court clarified what it meant by “health.” Doctors making the “necessary for health” call, the Court ruled, were to consider “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient.” If the doctor attests that she needs it, in other words, Roe and Doe say the state is not supposed to interfere, no matter how advanced her pregnancy is. This is not right-to-life cant. It’s one of several aspects of the abortion rulings that went so much further than what either side expected that within a few weeks of January 1973 dozens of scattered opposition groups had coalesced into a passionate, implacable national opposition movement devoted to either a constitutional human-life amendment or a complete reversal of Roe.
3. In 1992, amid many predictions that the reversal was finally about to take place, the Supreme Court surprised everybody in Planned Parenthood of Southeastern Pennsylvania v. Casey, the product of a constitutional challenge to recent Pennsylvania abortion legislation. Casey upheld Roe, which was the surprise. But Roe had laid out its rules for state abortion law according to trimesters of pregnancy; Casey said the trimester framework was “rigid,” and dumped it. The new guideline, according to Casey, is “undue burden,” with a cutoff—a qualified cutoff—at fetal viability. From conception right through to viability, Casey declared, women have a right to terminate their pregnancies, and no state law may unduly burden, or place “a substantial obstacle in the path of,” a woman’s choice to abort a nonviable fetus.
4. The late-abortion language about the definition of “health” was left intact in Casey. That means Supreme Court doctrine still requires states to permit any abortion, even if the fetus is developed enough to survive on its own, once the doctor pronounces the abortion necessary to protect the woman’s physical or psychological health. Abortion opponents like to sum up this standard as “legal at any time, for any reason, all the way through the ninth month of pregnancy.” In practice, there are very few physicians in the United States who perform abortions after the twenty-fourth week of pregnancy—a majority of states still have third-trimester prohibitions on the books, in fact, even though those laws would appear to be unconstitutional under both Roe and Casey. The data on late abortions doesn’t provide much reliable detailed information about why women obtain them, or how they’re done. The New York-based Alan Guttmacher Institute, which keeps the best abortion statistics in the country, has estimated about 10,300 per year at twenty-one to twenty-two weeks; 5,000 per year at twenty-three to twenty-four weeks; 850 per year at twenty-five to twenty-six weeks; and from 320 to 600 per year at twenty-six weeks and beyond. Some of these are fetal-anomaly abortions, requested because a problem has turned up late in pregnancy, but many are not. American law doesn’t require specific reasons. From time to time, for rhetorical purposes, the prom-dress girl is invoked—a fictional teenager who has suddenly decided she’s too pregnant for her formal and walks into a clinic at twenty-eight weeks demanding to have it taken care of. Nobody has ever produced an actual prom-dress girl; the point about the prom-dress girl is theoretical, and in a theoretical way it is true: under Roe, and under Casey, in the unlikely event that the prom-dress girl were able to find a suitably cooperative doctor, she too would theoretically be able to claim a legal right to abortion—a constitutionally protected “right to choose.”
It was against this backdrop, with its rich potential for the most dramatic and shocking exercises in national public persuasion, that Keri Folmar set to work.
* * *
“As used in this section, the term ‘partial birth abortion’ means an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.” This was the felony proposed by Canady’s bill, and within the coalition of East Coast advocates for legal abortion—lawyers, lobbyists, officials of organizations like NARAL and the Planned Parenthood Federation of America—a case was made, briefly, for walking away from the appalling gamble of a public fight. Ron Fitzsimmons, in 1995 the lobbyist for a clinics’ organization called the National Coalition of Abortion Providers, remembers the grand, relentless oratory inspired by the bill: “They’d be talking, talking, talking, and every few minutes, they’d say, ‘Mr. Speaker, let me just once again describe this horrific procedure for you.’ I swear, I thought the debate occurred every night between five and six p.m., when people were coming home. They did exactly what I would have done—they brought out those pictures. And I was just thinking: who’s going to go out there and defend this?”
“The reality was, we didn’t have a choice,” recalls Katherine Kolbert, one of the experienced litigators summoned to urgent Washington, D.C., strategy sessions on how to respond to the Partial-Birth Abortion Ban Act. “There had never, ever been a federal statute that prohibited a particular method of abortion. Even if you could limit the language, they’d just move on to the next. It never ends.”
Prohibiting by method had been attempted before, in fact, but never successfully, and that history played a crucial part as lawyers and strategists now argued over the political and public-relations risk inherent in what they were about to do. Twenty-one years earlier, in the surge of outraged legislative efforts that immediately followed Roe, the Missouri state legislature had tried banning saline amniocentesis abortion, then the standard method for second-trimester procedures. The Supreme Court overturned the ban, ruling that because saline was the standard method, prohibiting it would amount to a state ban on abortion after twelve weeks—and that, the Court said, was a violation of the constitutional right it had just recognized in Roe. The ironies here are complex but important: salines, which were uterine infusions of a salt solution that brings on labor and the delivery of a dead fetus, were known even by abortion providers to be a wretched experience for the woman—painful, drawn-out, emotionally wrenching. At that time, however, salines were far safer and cheaper than the alternative, hysterotomy, essentially abortion by full cesarean operation. It wasn’t until the late 1970s that word began spreading of a new second-trimester option that was emotionally grueling for the doctor but safest of all and much easier for the patient: dilation and evacuation.
By the summer of 1995, as the first House of Representatives Subcommittee on the Constitution Hearing on Partial-Birth Abortion was getting under way, D&E was the preferred method for any American physician who routinely offered mid-trimester abortions—between around fourteen weeks, that is, and twenty weeks, the point at which, as Haskell had observed, the toughness of the fetal parts begins making dismemberment difficult. And here were the real stakes in the pro-choice gamble—not D&X, a term nobody had ever heard of before 1992, but D&E, which in this country is used for tens of thousands of abortions each year; and by logical extension every other pregnancy-termination method that might qualify as horrific if an ordinary person were led into the procedure room and made to look closely at what the doctor was doing.
Was any method safe, if up-close visual acceptability were to become the basis for some new legal standard? First-trimester vacuum aspiration would probably pass, since that is mostly unrecognizable tissue suctioned into a surgical pan. But by the second trimester there are hands with fingers and feet with toes, all distinct enough to be recognized by the naked eye, and a Horrific Procedure Ban Act, which in essence was what Canady had introduced, could plausibly be adapted to every technique abortion doctors use from the fourteen-week point on. If pushing a suction catheter into the back of a fetus’s head was criminally “brutal and inhuman,” as Canady’s letter soliciting congressional co-sponsors had put it, then surely pulling a fetus’s limbs off inside the uterus could eventually be deemed equally brutal and inhuman. If D&X was a perversion of obstetrical delivery, as the right-to-life people liked to say, then surely inducing abortion by miscarriage—deliberately giving a woman drugs to make her go into labor and expel a dead fetus—was just as great a perversion.
But even suggesting this, publicly, meant walking right into Keri Folmar’s trap. For two decades the people who frame legal-abortion campaigns in this country had been working assiduously to keep the door to that procedure room shut, redirecting the national attention to the action beforehand and afterward: the choice to seek an abortion, the decision to have an abortion, the values inherent in a society that gives women the liberty to make this momentous decision without interference from the state. They had worried for years that if the general public were forced into a mangled-fetus-versus-women’s-autonomy tradeoff, the mangled fetus would win. And as the Partial-Birth Abortion Ban gained momentum, organizations like NARAL and the National Abortion Federation made one misstep after another as they tried to fashion arguments that might now serve as an adequate counterweight to “the child’s brains are sucked out,” which was one of the captions accompanying the Westberg drawings in the Congressional Record. There was the argument that D&X is extremely rare, used at most 500 times per year—wrong, as it turned out; the numbers, though impossible to tally precisely, appear to be in the thousands. There was the argument that D&X is used almost exclusively for cases of the most severe and tragic fetal deformities, which typically go undiagnosed until late in pregnancy—wrong, as it turned out; some intact extractions are fetal deformity cases, and some are not. There was the argument that the fetus is always dead by the time the doctor begins extracting, its demise ensured either by the preparatory steps or by the anesthesia administered to the woman—not only wrong, as it turned out, but a tidy segue into a congressional hearing called “Effects of Anesthesia During a Partial-Birth Abortion,” in which one of the witnesses was a nurse who testified that she had watched Haskell put scissors into the head of a twenty-six-week Down syndrome fetus while “the baby’s little fingers were clasping and unclasping, and his feet were kicking.”
* * *
Year after year, 1995 through the end of the Clinton presidency, the public battles roiled on: Clinton declared that he’d sign the ban, but only if it included a health exception; the ban’s authors refused to write in a health exception, insisting that a partial-birth abortion is never necessary to protect a woman’s health. Clinton vetoed the bill in 1996; a new ban passed in 1997, and Clinton vetoed it again. At one especially dismal point Ron Fitzsimmons made headlines of his own by confessing that he had given a reporter D&X numbers that he knew were too low to be real. “Lied through my teeth” were Fitzsimmons’s exact words, and although Fitzsimmons says he’s still sorry about the credibility damage done to his abortion-rights colleagues in Washington, the truth was that none of them, himself included, had been eager to sit down with reporters or unfriendly congressmen and explain in plain English what D&X is: one terrible-to-look-at procedure among an assortment of terrible-to-look-at procedures used for second- and third-trimester abortion in the United States, which is relatively uncommon, but only relatively—there are 1.3 million abortions performed annually in this country, 12 percent after twelve weeks—and is protected by repeated rulings of the Supreme Court. “We’ve been talking about ‘choice’ since 1973, but everyone knows there’s this big elephant in the room that we can’t talk about,” Fitzsimmons says. “I mean, come on. It’s insulting to women when we obfuscate. Let’s talk about it.”
* * *
The San Francisco Partial-Birth Abortion Ban trial lasted three weeks, and each morning’s proceedings began the same way: two teams of lawyers walked into a seventeenth-floor courtroom in the federal building, nodded politely at each other, assembled around separate tables, and opened laptop computers. The judge, Phyllis Hamilton, stepped into the courtroom at precisely 9:00 a.m. Everyone rose. Everyone sat. There was no jury, and most days the spectator seating held nine or ten people, including the expert witnesses, all of whom were physicians. Hamilton’s voice, measured and careful, never changed. The vocabulary began to take on the familiar, flattened quality that comes with repetition: disarticulate, disarticulating, disarticulation. Calvarium. Fetal demise. Phrases that might have lingered in another context—“crush the calvarium,” “use scissors to cut the neck”—floated up from the quiet testimony and were gone. At one point the following exchange took place as Mark Quinlivan, one of the Justice Department attorneys defending the ban, was cross-examining a physician testifying under a Dr. Doe pseudonym:
Quinlivan: “Doctor, when you are performing a D&E that results in a potentially intact delivery, and you have—and prior to, as you say, separating the body or the thorax from the calvarium—who is holding the body of the fetus?” Doe: “No one. The vagina kind of tends to be supporting it, and the portions that are out of the vagina kind of just hang down.”
Quinlivan: “In those situations, have you ever—prior to separating the calvarium from the thorax, have you ever noticed any movement or twitching or jerking of any form in the fetus?”
Doe: “No. But I guess I wouldn’t be particularly paying attention to that. I am focusing on trying to complete the procedure as safely as possible.”
Quinlivan: “How about when you take the scissors to cut and separate the fetus’s head from the body? Have you ever noticed any movements or jerks or anything of that form on the fetus?”
Doe: “No.” I started using Post-its to flag the pages in my notebooks containing courtroom back-and-forth that seemed especially jarring or convoluted. Soon my legal pads were festooned with stickers, and for a while I thought the disorienting atmosphere in Hamilton’s courtroom—it was impossible to walk out each afternoon without feeling dizzy, as though one’s directional bearings had gone awry—must be a byproduct both of the testimony itself and of the intricate legal zig-zag each side was undertaking in order to present its case. There’s a complicated back story here, but let me see whether I can distill it to its surrealistic essence: the Justice Department, in order to argue that the Partial-Birth Abortion Ban that George W. Bush finally signed is acceptable under the Supreme Court’s holdings, needed to prove that there is a specific procedure definable as “partial-birth abortion”; that this partial-birth procedure is never the safest option for a pregnant woman; and that other methods of abortion—dismemberment D&E and induction, in particular—are demonstrably available and safe. (The Court has said laws may not “unduly burden” women before viability, remember, and since everybody agrees that D&X is sometimes performed before viability, banning it completely would constitute an undue burden unless there’s always some equally safe or safer alternative way for a woman to have an abortion.)
The lawyers for abortion providers, on the other hand, needed to prove that “the intact variant,” as they prefer to call it, is simply one way to do D&Es—all the same dilating and evacuating procedure, in other words, except that sometimes parts come out and sometimes a whole fetus comes out. If that’s true, then since D&E is the standard post-thirteen-week abortion method, a ban that extends to all D&E would unduly burden women seeking abortions during the second trimester, when the Court has reiterated that abortion is a legal option and strictly a woman’s own decision. Furthermore, these lawyers need to prove that this “intact variant” is sometimes the very safest option—safer than having pieces pulled out, and safer than, or at least preferable to, being hospitalized and put through drug-induced labor.
Follow? John Ashcroft’s Justice Department making the case for the safety of “disarticulation” abortions; Planned Parenthood’s lawyers, like their companion teams in Nebraska and New York, making the case that they’re not always the safest possible option. The dueling courtroom strategies produced long stretches of testimony in which what happens in an abortion—exactly, excruciatingly, what happens in an abortion—was the only thing anybody talked about. And why, Doctor, might the ban’s criminalization of “an overt act that the person knows will kill the partially delivered living fetus” extend to the disarticulation D&Es you perform? Because sometimes, Counselor, the part I am extracting from the woman’s body—not an intact fetus, just the disarticulated part—might still be attached to a beating heart.
* * *
One afternoon in June, I went to Washington, D.C., to visit the National Right to Life Committee’s Douglas Johnson, who has worked for thirteen years as the organization’s legislative director and is one of the senior right-to-life lobbyists in the Capitol. All three of the Partial-Birth Abortion Ban federal trials had concluded; a few days earlier, I had been in Manhattan to watch the closing arguments in the New York case, National Abortion Federation v. Ashcroft. Hamilton had already issued her ruling overturning the ban, and the Nebraska judge was expected to do likewise, but all spring there’d been urgent legal chatter in both camps about the New York judge, a Clinton appointee named Richard C. Casey, whose agitated questioning of abortion doctors was making him sound like a promising right-to-life ally. (“Does that mean you take care of your patient and the baby be damned; is that the approach you have?” “These women who are having abortions at gestational ages they are legally entitled to—” “I didn’t ask you that, Doctor. I asked you if you had any caring or concern for the fetus whose head you were crushing.” “No.” “Thank you. Next question.”)
In closing argument, the judge had lived up to his billing. I had heard him say “tear the fetus limb from limb,” referring to D&E; and “they insert a pair of scissors into the base of the skull of the baby and then suck his brain out,” referring to D&X; and there was a long, combative exchange during which the NAF attorney tried to plow through his closing statement while Casey kept prodding him to describe all these second-trimester methods one more time, just for the record, and what again was the vocabulary the doctor witnesses had testified they used when they explained these methods to patients? “They didn’t tell the woman in simple, unsugarcoated, if there were such a word, language,” Casey had said, “that what you’re doing is tearing the arms and legs off the baby.”
The Manhattan courtroom had been crowded to capacity, a long overflow line waiting outside the door, which gave Casey a respectably sized audience for these remarks. A productive piece of work, all in all, for an enterprise intended to disturb. Douglas Johnson hadn’t been there, but I assumed he had read the transcript by the time he picked me up at the Metro station near his house in suburban Maryland. In his family room, he had laid out various props and documents for me; on the couch, atop a poster-sized Partial-Birth Abortion Ban display, were a seven-inch plastic fetal model and a pair of Metzenbaum scissors. Framed photographs of Johnson’s family crowded the mantelpiece—three adopted children, he said, when I asked about the smiling multiracial lineup in the pictures, and a fourth biological child, who was born prematurely and has mild cerebral palsy. “Twenty-seventh week,” Johnson said quietly. “One pound, twelve ounces.” I knew he had mentioned this son once while testifying about the ban in Congress—“Mr. Chairman,” Johnson had testified, “we need to remember that ‘birth’ and ‘full-term’ are two very different things”—and now when I asked him about the legislative terminology “partial-birth,” he looked deeply irritated. “This method is, literally, a partial live birth,” he said. “When Charles Canady said ‘three inches from homicide,’ that wasn’t polemic. It was legally true.”
The reason the ban makes no reference to viability or fetal development, Johnson said, is that for legal purposes those don’t matter. The fetus’s location is what matters, he said: if it’s all the way out of the woman’s body and it’s alive, it’s been born, no matter how developed it is, and regardless of the woman’s intentions when the procedure began. “Let’s say you have a baby born at twenty-two and three-quarters weeks,” Johnson said. “You have two neonatologists standing over the incubator, arguing about whether they should do this or that, whether it’s futile, whether this baby has a chance. Suddenly somebody rushes in from the corridor and strikes the baby on the head with a hammer. Does anybody dispute that a homicide just occurred? No. One neonatologist may say a certain intervention is futile here. Another may say, ‘No, we should do this or that thing.’ But they’re both going to grab that guy and call the cops.”
The reelection of George W. Bush would be no guarantee of the Partial-Birth Abortion Ban’s future. If Bush serves a second term; and if during that term he is able to realign the Supreme Court, which is now either 6‒3 or 5‒4 in support of the constitutional right to abortion, depending on how the signals are read; and if that suitably realigned Court then agrees to a review—that’s the requisite trio of ifs—then it is possible that one of these cases, Second and Third Trimester Abortion Doctors v. Ashcroft, could have a massive impact on American abortion law. In the face of such a transparent game plan, I knew that what I wanted to ask Johnson had a slightly crackpot quality to it, but I was curious anyway: for the dedicated right-to-life person, isn’t it ethically repugnant to press the case that one method of ending fetal life is worse than another? Isn’t this like arguing about whether murder by gunshot is societally preferable to murder by strangulation?
“I guess we dispute the premise that these things are inevitable—that if you address one form of brutality against the human family, people are just going to go to another one,” Johnson said. “I don’t think the killing, the taking of an innocent human life, becomes ethically less problematic if it’s done one way or another. But on the other hand, it’s preferable that there should be less suffering, rather than more. Just like, I suppose, if someone said to an opponent of capital punishment, ‘We’re going to kill this person one way or another. Do you want us to put him up on meat hooks or give him a lethal injection?’ They’d say, ‘Well, I’d rather not have to decide. But give him a lethal injection. I’m against it either way.’ Well, we’re against it either way.”
A copy of the Partial-Birth Abortion Ban lay on a footstool between us, and I asked Johnson whether he would clarify something. Let’s posit that the ban has been upheld, I said, and is now in effect. An abortion doctor has begun a D&E on a patient in her eighteenth week. He’s using forceps. He clamps what turns out to be a fetal foot. He pulls, intending to take off the leg, but the whole fetus begins descending into the vaginal canal. “‘Deliberately and intentionally vaginally delivers a living fetus,’” I read aloud from the bill. “‘Performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.’”
What I was wondering, I said: “Does the doctor now say to himself, ‘Uh-oh, I’d better make sure to pull this leg off inside the canal, and then wait until the ultrasound shows the heart has stopped, or else I’ll be violating federal law’”?
Johnson considered. “But what he was trying to do at the beginning was a classical D&E, right?”
Right, I said. However, as the actual doctors testified repeatedly during the trials, these things don’t always go exactly as anticipated.
“But that’s what he was trying to do to begin with, so that’s what the intent was,” Johnson said. “The burden in any criminal law is to show every element, beyond a reasonable doubt. The initial threshold is the prosecutor’s, and there’s a lot. He has to prove the fetus was alive at the beginning of the procedure, not just probably, but beyond a reasonable doubt. He has to prove beyond a reasonable doubt that the doctor deliberately and intentionally delivered it past the navel. Maybe the nurse thinks he did. Did she look? They’d have to prove every one of those things.”
But knowing he might face this sort of criminal inquiry, I said, would make our hypothetical doctor unlikely to undertake any procedure at all.
Johnson smiled. Then he chuckled. He spread his hands, palms up. “He’s a licensed professional,” Johnson said. “I’m sure he’ll make every effort to comply with the law.”
On August 26, Richard Casey overturned the Partial-Birth Abortion Ban. His ruling described D&X as “gruesome, brutal, barbaric, and uncivilized,” which was the quote that appeared in the news stories, but that was only one line in a ninety-two-page decision concluding that because some doctors believe D&X is the safest procedure in certain situations, and because the Supreme Court has said the preservation of the woman’s “life or health” takes precedence over everything else, the law is unconstitutional without a health exception.
Two weeks later, U.S. District Court judge Richard Kopf weighed in from Nebraska. Zero for three, as far as abortion opponents were concerned, and when I called Johnson, he sounded grim. “Judge Casey was boxed in,” he said. “I suppose there was some small hope. But at the end of the day, he’s a District Court judge, and he looks at the Supreme Court’s doctrine. It just comes down to what we’ve said all along—that it’s going to depend on who’s appointing the justices in the years just ahead.”
A tone of queasy resignation permeates parts of Casey’s ruling, as though the judge were still reeling from descriptions of things that appear to be constitutionally protected despite being gruesome and brutal and so forth, and as I read the decision it struck me that abortion opponents, too, took on a certain kind of potentially costly gamble when they decided to engage this fight. What happens, I asked Johnson, if you lose? It wasn’t the courts I was talking about, exactly, but rather the broad limits of public acceptance. Thirty-one years ago, only the most politically pragmatic right-to-life leaders believed Americans could grow accustomed to the idea that abortion was to be available as an elective medical procedure all over the country; the movement’s rank-and-filers were sure, in the first months after Roe v. Wade, that they had only to explain clearly enough what had happened, and then a constitutional amendment or a reversal would soon put everything back the way it had been. What if they should turn out to be wrong about this, too? What if, in the end, Johnson and his colleagues discover that people have looked at all there is to see, inside a working abortion clinic, and concluded that there is no procedure too distressing to be legal?
I didn’t hear anything for a minute, and I thought the line had gone dead. Then Johnson said, “Somebody famous, I can’t remember who it was now, said, ‘Man, the brute, can get used to anything.’ There is that. But I think most people of ordinary sensibilities, when they come face to face with this sort of brutality toward a member of the human family—they do find it shocking. If Roe v. Wade is overturned, then we’re in the world where people we elect get to decide these things, and that would be a big step in the right direction. In the end, if we can’t persuade people that unborn members of the human family deserve protection, then they’re not going to be protected.”
* * *
“Not for the faint,” read the opening line in a San Francisco legal newspaper article, summing up the proceedings, and it wasn’t until after the trial had ended that I began to understand my own disorientation—this feeling that something important was underway but that I was unable to see it, as though it kept hovering at the periphery of my vision. Squeamishness, I had assumed, like my inability to look at the movie screen when the bloody part comes on; this is what comes of letting the litigators shoo the P.R.-conscious advocates away and fling open the door to the procedure room. Here it is, people. Deal with it. Eventually, though, it seemed to me that part of the reason my head hurt was that all of us in the courtroom were staring in the wrong direction. There is a sober, profoundly difficult public conversation to be had about second- and third-trimester abortion in this country: about whether it is or is not appropriate for the law to continue regarding a twenty-two-week abortion as a private woman-doctor decision, for example. (The United States is one of a very few Western countries whose laws require no justification at all for abortion before viability; in many European countries with liberal first-trimester policies, a legal line is drawn somewhere between twelve and eighteen weeks.) What is the point in the developing fetal life at which the reason for ending it becomes the state’s business, our collective business? If viability is properly that point, is it sensible or is it evasive to maintain the post-viability catch-all of “all factors” health? What would happen if we opened the floor to straightforward talk about fetal-deformity abortions? What do we want to do with the late-abortion cases that don’t arouse widespread sympathy when their circumstances are explained—not the hyperbolic prom-dress girl but the real-world messes that show up in clinics every day: the woman whose life is a disaster, the fourteen-year-old who’s been hiding it under baggy clothes? Is it right or wrong to differentiate between them and the woman who doesn’t receive the Down syndrome diagnosis until after she has picked out the baby’s name?
The Partial-Birth Abortion Ban argument is not this conversation, and part of the Roe v. Wade legacy has been warring camps whose all-or-nothing agendas—the sanctity of prenatal life, or the inviolability of the pregnant woman’s autonomy—work against our being able to have it. Bring up the European model with an American pro-choice leader, and the conversation makes two quick turns: first, to the observation that most American states have ended public abortion funding, so that poor women trying to come up with payment money are sometimes pushed into later abortion by the very system right-to-lifers helped create. But there’s something deeper than that at work. Roe was a privacy ruling, declaring that the right to abortion was part of a woman’s constitutional right to privacy, and over the years defending Roe has come to mean defending that privacy so completely and so ferociously that almost any expression of public concern for the fetus is received as a threat, a step onto the famous slippery slope, at the bottom of which lie the septic abortion wards of the pre-legalization years. Right-to-life strategists knew how well this adamancy would work in their favor when they rolled out the first partial-birth legislation, and they will try to capitalize on it again starting this fall, when their lead agenda item will be the Unborn Child Pain Awareness Act, the next incarnation of the force-the-visuals campaign, which has all the explosive public relations potential of its predecessor, minus (so far, at least) a good set of drawings. “Full-court press,” the New Jersey Republican congressman Chris Smith has said, describing the vigor with which he and his Senate colleague Sam Brownback (R., Kansas) intend to push their memorably named legislation; the bill doesn’t directly restrict abortion but instead mandates that every woman having an abortion at twenty weeks or more be told beforehand, by her abortion provider, that “there is substantial evidence that the process of being killed in an abortion will cause the unborn child pain.”
There’s more: the bill requires that the woman, after receiving this information, be offered an anesthetic specifically for the “pain-capable unborn child.” The woman must accept or decline the anesthetic, in writing, by signing an Unborn Child Pain Awareness Decision Form. The lineup of practical objections presents itself at once—the obligatory vocabulary is politically loaded; there’s no scientific consensus on the fetal pain question; the administration of separate anesthesia could pose a physical risk to the woman and drive up the cost of the procedure. But the real detonation device is the central proposition: that a woman requesting a late abortion ought to be forced by law to envision what she is about to do as an act that might, at the very least, cause a sentient being pain. Who’s going to take that on in public, and how? “This is the next one,” an abortion-rights veteran told me early this summer, as the new legislation was circulating among weary survivors of the partial-birth brawl. “Everybody takes it very seriously. And nobody knows exactly what to do about it.”
About the Author: Cynthia Gorney is the author of Articles of Faith: A Frontline History of the Abortion Wars. She teaches in the Graduate School of Journalism at the University of California, Berkeley.
1. According to Roe, the state had no assertable interest in a woman’s decision to have an abortion during the first trimester of pregnancy. During the second trimester—Roe defined that period as from “approximately the end of the first trimester” to the point of fetal viability—the state did have an interest, but solely in protecting the health of the mother. That meant the only Roe-approved second-trimester abortion laws would be those directed at the woman’s safety; her reasons for deciding on the abortion were still entirely up to her.
2. This data is twelve years old, but it remains the most comprehensive available.
3. Salines also required hospitalization, because the patient might labor overnight. Most hospitals wouldn’t perform salines before sixteen weeks, because the method was problematic with smaller fetuses, and since vacuum aspiration was thought inadvisable after about twelve weeks, that left four weeks during which a pregnant woman seeking a legal abortion, during the salines era, had no option but to remain pregnant and wait.
4. Before medical instructions for D&E appeared in any textbook, doctors interested in abortion technique were hearing from the handful of physicians around the country who had developed their own methods for dilating the cervix safely and then using forceps to pull out piece by piece a fetus too big to fit through an aspirator. Even among abortion doctors, an operation that required dismemberment was a hard sell at first; some declined to begin offering it, saying they’d refer for D&E if necessary, that they understood its advantages, but that they were unwilling themselves to become skilled at twisting off fetal parts. Early D&E medical literature noted the high emotional price clinic staffs were paying as they introduced the new second-trimester method: “emotionally difficult,” “the visual impact of the fetus,” “the anguish of the actual performance of the abortion,” etc.
5. Black humor, pro-choice version. Q: What are the only four categories for which a majority of Americans agree abortion should remain legal? A: 1. Life of the pregnant woman, or severe threat to her physical health. 2. Rape or incest. 3. Severe fetal deformity. 4. Me.
6. This Supreme Court has already overturned one partial-birth abortion ban—but that was a state law, adopted in Nebraska, and its wording was similar, but not identical, to the federal law now being challenged. Between 1995 and 2000, while the original PBABA was being vetoed by Clinton and re-introduced and generally offered up repeatedly as an occasion for congressional oratory, states around the country were adopting their own partial-birth bans, most of which were challenged in court. In June 2000, the Supreme Court ruled on one of these challenges, Stenberg v. Carhart. In a 5-4 ruling, the justices overturned Nebraska’s ban, finding it unconstitutional partly because it contained no health exception, and testifying doctors had satisfied the lower court that sometimes they believe D&X is the safest procedure available. In addition, the Court found, Nebraska’s definition of partial-birth abortion could be read to apply to D&Es.
Backers of the Partial-Birth Abortion Ban of 2003 say it was written with Stenberg in mind. The actual ban has not changed much from its previous version; there is some rewording of the definition of “partial-birth abortion,” but still no health exception. What the new bill does contain is a set of controversial congressional “findings”—assertions that Congress presents as fact, which are meant to take precedence over the trial record, and to which courts are directed to pay “great deference,” as the legislation puts it. Among these findings: that partial-birth abortion is “unrecognized as a valid abortion procedure by the mainstream medical community”; that the procedure itself poses a health risk to the pregnant woman; and that “the vast majority of babies killed during partial-birth abortions are alive until the end of the procedure.” The chances that the current Supreme Court would essentially reverse Stenberg as a response to these changes in the 2003 law seem minimal. But the appeals that would be pursued under a second Bush administration would take many months, potentially enough time for the case to reach a reconfigured Court.
7. Two years ago, George W. Bush signed into law a short piece of legislation called the Born-Alive Infants Protection Act. That law, now part of the U.S. Code, defines as a legal person “every infant member of the species homo sapiens who is born alive,” and goes on to define “born alive” as the “complete expulsion or extraction from his or her mother of that member, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.” [Emphasis added.] Passage of the legislation followed debate about how and whether it might be applied to abortion or to neonatologists’ decision-making; to date, as far as Johnson and several nationally prominent right-to-life attorneys are aware, it has not been legally tested in either situation.
8. In France and Finland, for example, abortions after the twelfth week are supposed to require special approval and be performed only for certain specified reasons. German law says that any post-twelve-week abortion may be prosecutable unless a second physician certifies it necessary to “avert a danger to life or the danger of a grave impairment of the physical or emotional state of health of the pregnant woman.” Iceland has a sixteen-week cutoff, after which the only acceptable reasons are fetal deformity or danger to the woman’s health. In England, politicians this summer began a debate on moving the cutoff for what are informally called “social reasons” abortions (available, with two doctors’ approval) from twenty-four weeks back to as early as twelve weeks.
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