When the Supreme Court voted 5 to 4 to uphold the federal Partial-Birth Abortion Ban Act this spring, the ambivalently pro-choice public was largely quiescent, believing, as Congress had previously ruled, that the procedure was “gruesome and inhuman,” medically unnecessary, highly controversial in the medical community and so rare as to be little missed.
What’s clear, however, as the ban has become a reality, is that fetuses will be spared no brutality. Second trimester abortion is still legal and the most common method for it — dismembering a fetus inside the womb before removing it in pieces — is no less awful to contemplate than the outlawed procedure, in which an intact fetus’s skull was punctured and collapsed to ease its removal. But women are now more at risk. And doctors have been forced into a danger zone where they must weigh what they believe to be best medical practices against the need to protect themselves from the threat of prosecution.
This kind of ethical tightrope walk, this sort of judicial meddling into standard medical practices, is unprecedented — and poisonous. An article in this month’s volume of the trade journal Obstetrics & Gynecology treats the dilemma with a mocking tone. “At our recent Annual Clinical Meeting in San Diego, I asked several colleagues if they intended to make referrals to the Supreme Court. All said ‘No’ because the court is not available for telephone consultations and makes rounds infrequently,” it says.
But in truth, dealing with the ban is no laughing matter. You see, as it turns out, the Supreme Court didn’t just outlaw “partial-birth” abortions (known in the medical community as “intact dilation and extraction” or D & X,) when it upheld Congress’s ban. It criminalized any second trimester abortion that begins with a live fetus and where “the fetal head or the fetal trunk past the navel is outside the body of the mother.”
The big problem with this, doctors say, is that, due to the unpredictability of how women’s bodies react to medical procedures, when you set out to do a legal second trimester abortion, something looking very much like a now-illegal abortion can occur. Once you dilate the cervix — something that must be done sufficiently in order to avoid tears, punctures and infection — a fetus can start to slip out. And if this happens, any witness — a family member, a nurse, anyone in the near vicinity with an ax to grind against a certain physician — can report that the ban has been breached. Bringing on stiff fines, jail time and possible civil lawsuits.
Justice Anthony Kennedy, writing for the court’s majority, asserted that prosecution for accidental partial births won’t occur; there has to be “intent” for there to be a crime. But as doctors now understand it, intent could be inferred by the degree of dilation they induce in their patients. What, then, do they do? Dilate the cervix sufficiently and risk prosecution, or dilate less and risk the woman’s health? And if they dilate fully, how do they prove it wasn’t their intent to deliver an intact fetus?
This dilemma is the latest product of the awful algorithm that, in anti-choice rhetoric of the past few decades, has increasingly pitted the “interests” of the fetus against the health of the woman. It makes the true intent of the partial-birth abortion ban clear: the point is not (in the short term) to stop seemingly brutal fetal deaths, but rather to make all abortions as burdensome, as difficult and as emotionally and physically trying for women — and for doctors — as possible.
To escape having to choose between their patients’ interests and their own, physicians who perform abortions around the country now are taking steps to ensure that doctors won’t find themselves accidentally allowing a live fetus to be partially “born” in the course of a second trimester abortion. The Planned Parenthood Federation of America and other independent providers are now making it policy in abortions that could become legally risky for doctors to use digoxin — a cardiac drug — to kill the fetus up to one day in advance of the procedure. The upshot for women will be more time-consuming and costly abortion services, additional rounds of amniocentesis, more pain and more risk of infection.
And the outcome for the fetus won’t change.
Judith Warner is a contributing columnist for TimesSelect and a guest Op-Ed columnist. Bob Herbert is off today.
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