Playing Politics With Women's Health

December 3, 2003 by Margaret C. Crosby, The Daily Journal

Imagine that you need an operation to prevent serious health problems—but the government has just made it a crime. This nightmare scenario became real throughout the United States when President Bush signed the so-called “Partial Birth Abortion Act of 2003.” The first-ever federal criminal ban on safe, medically necessary abortion procedures jeopardizes women’s health and violates women’s fundamental constitutional rights.

Just three years ago, the United States Supreme Court struck down a similar Nebraska law, ruling it unconstitutional for two independent reasons: first, its broad language made safe and common abortion procedures used before fetal viability a crime; and second, it contained no exception for procedures necessary to protect women’s health. Stenberg v. Carhart, 530 U.S. 914 (2000). Congress simply defied the Supreme Court in drafting the new federal ban, which has the identical constitutional flaws.

The term “partial birth abortion” is a politically concocted phrase, with no medical meaning, fabricated to conjure up images of infanticide. Contrary to the misleading public relations campaign surrounding the effort to ban “partial birth abortion,” healthy women and their doctors do not capriciously decide to murder healthy fetuses moments before birth. The decision to end a wanted pregnancy in the second or third trimester often reflects poignant circumstances: fetal abnormalities that mean that a baby will be born dying, or serious complications that will jeopardize a woman’s ability to work and care for other children.

The federal ban blocks doctors from choosing procedures that may offer the best chance of protecting their patients’ health. The consistent thread that runs through the Supreme Court decisions on abortion is the primacy of women’s health. Thirty years ago, in Roe v. Wade, 410 U.S. 113 (1973), the Court established that even after fetal viability, when abortion can be banned, the state may not ban an abortion necessary to preserve a woman’s health. In the 2000 Stenberg v. Carhart case, the Court reaffirmed the principle—hardly radical—that the government’s proper role in regulating abortion is never to endanger women’s health.

Yet Congress put no health exception into a federal criminal law that has no gestational limit and prohibits abortion well before fetal viability. Instead, Congress substituted its judgment for the wisdom of medical professionals actually involved in patient care, by inserting extensive Congressional “findings” that the abortion technique known as intact dilation and extraction (“IDE”) is never medically appropriate. These “findings” are not grounded in medicine and are simply untrue.

Experts agree that the IDE procedure is safer for some women. It minimizes the chance of perforation, infection and blood loss; it allows for autopsies of intact fetuses to determine what went wrong and enhance the woman’s chance of a healthy future pregnancy; and it affords grieving couples an opportunity to hold the fetus and find closure after experiencing a pregnancy loss. Physicians in training learn the IDE procedure at leading teaching hospitals. The technique was developed as part of the continuing scientific effort to improve the safety of abortion technology.

Moreover, despite the deceptive “partial birth abortion” title, the bill outlaws much more than the IDE procedure itself. It will place doctors at risk of criminal charges any time they use safe and common medical procedures currently used in 95% of second trimester abortions. IDE is simply a variant of the dilation and evacuation (“D&E”) procedure most frequently used to end pregnancies after 12 weeks. The new law defines the crime by such vague and arbitrary language relating to fetal location during the procedure that it sweeps in both D&E and its variant IDE. Even if Congress intended to ban only IDE, it is virtually impossible for doctors to know or control when an ordinary D&E procedure crosses the arbitrary line and becomes a felony. In the stress of the operating room, a doctor faced with sudden medical events calling for moment-to-moment decisions may shift from one procedure to a related technique.

Do we want our surgeons to deviate from their best medical judgment in an attempt to avoid engaging in conduct that constitutes a federal crime? Shouldn’t doctors be allowed to provide the best medical care possible without fear of prosecution? Do we want partisan prosecutors second-guessing the doctor after-the-fact? Do we want to turn nurses and doctors against each other on the witness stand over questions of inches during a complicated medical procedure? This is why the so-called “Partial Birth Abortion Act” is so reprehensible: Congress is playing politics with women’s health.

Margaret Crosby is a lawyer for the American Civil Liberties Union of Northern California