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News of the Day ... In Perspective

5/1/2007

Court upholds partial-birth abortion ban; broad impact predicted

In a 5-4 decision, the U.S. Supreme Court upheld the right of Congress to forbid partial-birth abortions, or intact dilation and extraction (D&X) (Gonzales v. Carhart), without an exception for the health of the mother.

Although the Associated Press stated that most Americans do not support the ban, a variety of polls show broad-based bipartisan support. For example, a March 2006 poll by Fox News showed that Democrats support the ban 51 to 35 percent; women, by 66 to 23 percent; men, by 55 to 32 percent; and Americans overall, by 61 to 28 percent (Lifenews.com 4/18/07).

The Feminists Majority Foundation told its members that the decision was a “direct assault on Roe v. Wade” (LifeNews.com 4/19/07).

Writing for the majority, Justice Anthony Kennedy distinguished the federal statute from the Nebraska one overturned in Stenberg v. Carhart, stating that it had a more precise definition of the prohibited procedure.

A “Perspective” by R. Alto Charo, J.D., in the New England Journal of Medicine called the decision “the partial death of abortion rights.” Charo is a professor of law and bioethics at the University of Wisconsin, Madison, and a member of the board of directors of the Guttmacher Institute.

Claiming that D&X procedures are “rare,” Charo said that in 2000 only 2,200 were performed by 31 providers, accounting for 0.17 percent of the 1.3 million abortions occurring in the United States that year.

But in September 1996, Metropolitan Medical Associates of Englewood, N.J., admitted to doing 1,500 partial-birth abortions a year, mostly on healthy mothers carrying healthy babies (LifeNews.com 4/19/07).

Charo writes that it is unclear what deference courts should give to “factual findings” when Congress is the source of scientific and medical authority. Congress had found that “ a ‘moral, medical and ethical consensus’ exists that partial-birth abortion is ‘a gruesome and inhuman procedure that is never medically necessary and should be prohibited.’”

“Legislation often must be passed,” Charo writes, “despite the presence of scientific uncertainty, and much environmental-protection legislation, for example, could be challenged if complete scientific consensus were required before restrictions on industrial pollution could be upheld.”

Charo finds the partial-birth abortion case, however, to be “singular” in that several state courts had found the same assertions to be based on nonexpert testimony. He said that when government involvement in medical decision making is warranted, “it is best handled through dispassionate, evidence-based expert reviews.” The “mere prospect of being investigated by a possibly hostile prosecutor may well have a chilling effect,” Charo writes, as on physicians who determine that a D&X is indicated to save a mother’s life.

Charo fears for the “continued viability of any right to abortion in any but imminently life-threatening situations.” Justice Kennedy’s conclusion that the burden imposed by the ban is “legitimate” and not “undue”—because “a fetus is a living organism within the womb”—shifts the “balance of interests” away from women’s health to “societal morality and the state’s interest in life.”

Charo approvingly cites Justice Ruth Bader Ginsburg, who said that “the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this court—and with increasing comprehension of its centrality to women’s lives” (Charo RA. N Engl J Med 4/23/07). In another “Perspective” in the New England Journal of Medicine, Michael F. Green, M.D., director of obstetrics at the Massachusetts General Hospital and associate editor of the Journal, headlines the ban as “the intimidation of American physicians.”

Unlike Dutch oncologists, who bravely performed euthanasia even when it was still illegal and reported to prosecutors, confident that they would not be prosecuted if they had acted “transparently and in the best interest of the terminally ill patient,” American physicians have “no confidence that their own judicial system would judge them fairly under similar circumstances.”

Hence the ruling casts a pall even over second-trimester abortions. If the fetus in a breech presentation should slip out of the partially dilated cervix, the procedure “could potentially evolve into a criminal act.” Green writes that the only way to “complete the delivery” might be to “reduce the size of the after-coming head.” Would this act be viewed as facilitating the delivery, or as intentionally killing the fetus? He wonders how the viability of the partially delivered fetus would be determined, and by whom. Doctors may choose to avoid performing second-trimester abortions, thus restricting access to them.

Columnist Kathleen Parker defined “reducing the size of the head” in lay terms: “sucking the brains out.” The Journal is—at long last—“alarmed by the current degree of intrusion by our government into the practice of medicine” (N Engl J Med, 4/25/07).

The dilemma faced by abortionists is highlighted by a British study showing that one baby in 30 survived an abortion attempt. The study covered the outcomes of 3,189 abortions done at West Midlands hospitals between 1994 and 2005 because of fetal abnormality. Many of the 102 survivors were between 20 and 24 weeks of gestation, just before or right at the point of viability. Without intensive care, they had no chance of living more than a few hours.

Most of the 190,000 annual abortions in Britain involve healthy babies. It is not known how many of these abortions—which are legal up to 24 weeks—result in a live birth (LifeNews.com 4/20/07).

The ruling “catapults abortion back into the ’08 presidential race” (NY Times 4/19/07). Strongly disapproving of the decision were Hillary Clinton, Barack Obama, and Jonathan Edwards. Supporting it were John McCain, Mitt Romney, Mike Huckabee, and Rudolph Guiliani.

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