Booman Tribune

The "partial birth" abortion ruling -- my limited perspective

by Steven D
Thu Apr 19th, 2007 at 08:47:44 AM EST

I don't know what it is like to have an abortion. I can't. But I know that the federal law banning "partial birth abortions" approved by the Supreme Court yesterday will have serious consequences for a great number of women. I also know that had this law been in effect a few years ago it could have had tragic consequences for someone I love very much.

(cont.)

The Supreme Court Court's Decision

What is a partial birth abortion? Here's how the Partial-Birth Abortion Ban Act of 2003 (the "Act" for short) which the Supreme Court recently upheld (caution: pdf file) in Gonzales v. Carhart , legally defines that term:

`(1) the term `partial-birth abortion' means an abortion in which the person performing the abortion--

(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and

(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus ...

I have no idea what that means. As Justice Ginsberg noted in her dissent, "partial birth" abortion is not a medical term. Indeed, the American College of Obstetricians and Gynecologists noted in its amicus brief to the Court in Gonzales v. Carhart that it opposed the law because:

... it exposes women to serious, unnecessary health risks and does not include any exception to protect women's health. In addition, ACOG objects to the Act's vague and overly broad terms because doctors will be unable to determine whether their actions are prohibited by the Act. As a result, the Act will deter doctors from providing a wide range of procedures used to safely perform induced abortions.

The federal district courts, which heard the cases challenging the Act, issued findings of fact after voluminous testimony by medical experts (more evidence than Congress ever considered prior to passing the Act according to Justice Ginsberg). They determined that Dilation and Extraction procedures ("D&E" for short) one of the procedures which is apparently banned by the Act, and which is the most frequently used abortion technique in second trimester pregnancies (months 4-6) is safer than any alternative procedure, especially for women whose health is at risk. Because the Act made no exception for the health of the woman undergoing that procedure, the district courts ruled it unconstitutional under prior Supreme Court decisions, decisions which have now been overruled by the majority opinion in Gonzales v. Carhart.

This is the crux of the issue. By ignoring the health concerns of women undergoing this procedure, the Supreme Court has taken a giant step backward in how we treat women in this country. Let me quote from Justice Ginsberg's dissent:

Today's decision is alarming. ... It tolerates, indeed applauds, federal intervention to ban a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). ...[F]or the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health.

That lack of a health exception might have had very dire consequences for someone I love very much, had the Act been in effect when she had her D&E procedure a few years ago: my sister.

Why this matters to me

I think it is fair to say that men have no idea what women go through when they are pregnant. And that applies whether a woman is very happy she's pregnant, very upset, or somewhere in between. In my sister's case, she was extremely happy when she finally became pregnant a few years ago.

My sister was so thrilled because she and her husband had been trying for years to have a child. Due to a childhood sexual assault she had suffered internal injuries that made it very difficult for her to conceive. She also suffered from various medical conditions (Chronic Fatigue, etc.) that also affected her health. After several miscarriages, she and her husband had resigned themselves to the fact that they were never likely to have any children. In fact, her ob-gyn had told her that her injuries were such that she was never likely to carry a child to full term. Then, out of the blue, in her late 30's, she became pregnant again. She didn't tell anyone in our family until she had passed her 3rd month, fearing another miscarriage. When that magical date passed, we all received the phone call announcing her pregnancy. She was very excited when she told me, if a little anxious. Still, there was no denying the joy I heard in her voice.

A month or so passed, until I saw her for the first time since her good news, when all of my siblings and I made the trek to my parents' home for Thanksgiving. She was positively glowing when we met, even as her husband kept watch over her like some anxious mother hen. I'd never seen her happier. She was every niece and nephew's favorite aunt, but much as she reveled in that role, what she really wanted was her own child to love and care for. All she talked about was how great a father her husband would make, and what plans they had made for the baby when it arrived.

It was several hours after Thanksgiving dinner that her bleeding started. First it was just a little spotting and some minor cramping and pain, but it soon became much worse. She resisted calling her doctor, and then she resisted going to the hospital, but finally her ob-gyn and all of us convinced her she needed to be seen by a physician. By this time her pain was very severe, and she was in a panic, so afraid of losing her baby.

My father, my mother and her husband drove her to the nearest hospital where she was seen in the emergency room. At first the news seemed good. The doctors there were telling her that perhaps the problem would resolve itself with medication to stop the contractions. Unfortunately, that was a false hope. As her bleeding continued to get worse, the doctors advised her that she should have a D&E procedure. She would have to lose her baby.

Again she resisted, It was only after the doctors told her husband and my parents that she needed the procedure done immediately or she might start severe internal hemorrhaging, with all the risk to her health that entailed, that she finally gave her consent. Later they told her that her baby could not have survived in any event. The fetus was simply not far enough along in her development (the fetus was female) to have survived outside my sister's womb, even if it could have survived the trauma of such a delivery.

The future consequences of the partial birth abortion ban

My sister was fortunate, in that she survived the procedure without any serious injury, although she kept bleeding for several days afterwards. She was also very fortunate that the Dilation and Evacuation procedure she had was not barred by any state or federal law. Would her doctor have been willing to perform this procedure on her today because of the risk that doing so would violate federal law?

I don't really know. But I suspect that many doctors, fearful of their own legal and criminal liability, will be increasingly reluctant to perform 2nd trimester D&E procedures, even in cases like my sister's, where the health of the woman, and her physical well being, could be compromised by failing to do so.

And that is why the Supreme Court's decision to uphold this immoral law is so distressing to those of us who believe that every person is entitled to make their own decisions regarding their health. We now have officially decreed separate classes of persons under the law: those who have the ability to make their own health care choices (men) and those who do not (women). Equal protection under the law has just been written out of the Constitution. The full consequences of that "choice" by five male justices of the Supreme Court is one that will likely lead to further erosion of other constitutional protections in the years to come.

Because once you start rolling back the constitutional rights of any individual, you make it that much easier to limit other rights in the future. You can bank on it.



Display:
Thank you for sharing it.  

The scary thing as you pointed out above is that there is no one medical procedure defined as partial birth abortion.  It doesn't exist!  Yet we have Congress and now the courts defining women's health procedures and creating a "chilling environment" for practioners making life and death decisions in their daily practices.

And this leads directly back to the misogyny discussion that's been circulating here the last few days.  

There are men, are many, many of them in positions of power, that simply see women as less than the sum of their body parts.  

Young women are #$%*&%^ and $%^ (the less we put those terms in print the better).

More mature women are breeders.

They don't see the humanity, dignity and beauty of women and how it is equal to their own.  And they then end up making laws that deny people (women at first) the rights to be safe and secure in their own bodies and to make autonomous decisions about their welfare.

And that is the tragedy in all this.

by northcountry on Thu Apr 19th, 2007 at 09:34:21 AM EST
Thanks for this diary, Steven.

One part of the anti-abortion movement that is seldom considered is its chilling effect on the medical community.

A few years ago, while at the Women's March, in DC, I met this incredible, strong, passionate nurse.  She had worked in public health in Asia and Africa.  She was currently working in an AIDS clinic for children.  She had been offered a position in an Abortion Clinic and had turned it down. The reason?  She felt such work would put her in too much danger.

The two of us also spent some time talking to young medical students.  They told us that it ws becoming harder and harder to receive training in abortion procedures.  Many Medical Schools have just stopped teaching it.

I'm glad your sister did not suffer physical harm from
her D&E.  It must have been a devastating time for your whole family.

If you want things to get better, be prepared to deal with change.

by Kahli on Thu Apr 19th, 2007 at 09:59:47 AM EST
It was pretty traumatic.  My sister-in-law who was also pregnant at the time, felt particularly guilty, though she had nothing to feel guilty about.  It was easily the worst Thanksgiving that our family has ever had.

Obama is a Patriot
by Steven D on Thu Apr 19th, 2007 at 10:08:45 AM EST
[ Parent ]
I've never been faced with the decision of whether or not to have any kind of abortion and, at this point in my life, I never will.  So I can only imagine the turmoil a woman must go through, especially faced with a D&E.

That said.  I am sure, without a doubt, that the SC decision yesterday was very destructive to women and girls at a psychic level whether or not they are ever faced with the choice.

First of all the idea that women couldn't handle the information about what a D&E entails is condescending in the extreme.  Since we sweet ditzes can't possible process the information, look into our souls, and make a decision, a bunch of old Catholic white guys have saved us the trouble.  The message is clear that we are too stupid or too weak to make a decision.
(This same kind of hubris was on display when the Court decided that we really should know the outcome of the Florida vote in 2000.)  So we women and girls are left with the message that some of the supposedly most erudite minds in the country has deemed us incapacitated in determining our own destiny.

The other incredibly destructive message is that women are de facto second class citizens.  There is no inherent right for our well-being to be equal to that of a fetus.

I left the Catholic Church over this issue.  I was told that under no circumstances did my well-being prevail.  I was told this by an institution whose authority I had been taught it was sinful to question. I was left reeling. Already low in self-esteem, I was nearly paralyzed by the impact of the realization that my well-being was never to come first.  

I remember kneeling in a grand cathederal and praying that I would never become pregnant.  I know that sounds awful, but I never wanted to be put in a postition where I was automatically considered disposable.

Fortunately, my prayers were not answered and I went on to have one of the easiest pregnancies and deliveries imaginable. My daughter is the joy of my life.

The sorrow I feel today is not just for the women who will be denied an important medical procedure -- although they are paramount -- but also for all women and girls who have been told that they don't matter enough.

If you want things to get better, be prepared to deal with change.

by Kahli on Thu Apr 19th, 2007 at 10:18:02 AM EST
Your story is so very close to someone else I know and care very much about.  She never told us she was pregnant until she'd passed the first trimester. She was in her late thirties at the time, with one child, and she very much wanted a second one. But sometime during the second trimester (I don't know exactly how far into it she was), doctors discovered she had a uterine tumor -- and probably due to the hormones of pregnancy, it was growing faster than the fetus.

Upon further examination, the doctors also told her that the fetus would not survive. She couldn't let the tumor go untreated; she would never carry to term. I don't know exactly how far along she was, I don't know for certain if they used the D&E procedure. But that would have been the least traumatic (for her) and best option. Upon examining the fetus afterwards, the doctors said that it would have never gone to term. She then had the tumor dealt with (I don't have details on this either).  

But if this procedure had been illegal, what would her options have been?  A C-section, which is major surgery? Drug-induced miscarriage?  How would that have impacted her overall health, or the tumor?  If abortion itself was illegal, how far would that tumor have gotten before a natural miscarriage would have occurred, and would she have survived the experience?

I've heard more than one story about women who were fairly far along in a much-desired pregnancy, even into the third trimester, when for whatever reason, their fetus died in the womb... and in those instances, the D&E is the best option, the least physically traumatic, the one that preserves the uterus intact.  Under the definition above, this procedure would still be legal for those cases, since the fetus is dead -- but how many doctors would be willing to perform it? Or even know how?  What about cases where the fetal skull is filled with fluid instead of a brain, swollen to a size too large for vaginal delivery? This ruling would force the woman to undergo a C-section delivery, which is a much more invasive and complicated procedure, with a much longer recovery time.

Justice Ginsberg is absolutely right. This is a horrible and WRONG decision, that puts the moral judgment of strangers over the health of a woman whose situation is already quite difficult enough.

Keith Olbermann speaks for me.

by JanetT in MD on Thu Apr 19th, 2007 at 10:32:34 AM EST
But puh-leeze STOP using the term, even with "" around it.

As I noted to BooMan last night...

Don't perpetuate dishonest language.

The non-medical term "Partial-birth Abortion" was coined in 1995 by pro-life congressman Charles Canady (R-Fla)[6] and is primarily used in political discourse -- chiefly regarding the legality of abortion in the United States. The term's first use may be from the original proposed Partial-Birth Abortion Ban, which circulated in discussion through the first half of 1995 and was formally introduced by the congressman on 14 June 1995.[7] Keri Folmar, the lawyer responsible for the bill's language, says the term developed in early 1995 in a meeting between her, Charles T. Canady, and National Right to Life Committee lobbyist Douglas Johnson.[8] "Partial-birth abortion" was first used in the media on 4 June 1995 in a Washington Times article covering the bill.[9]

decent wiki piece on the subject here.

The term you've used in your diary title is as dishonest as the term "pro-life." Such distortions only work if they are repeated. Don't contibute to the perpetuation of dishonest language, for starters.

Swift Boat Veteran's for Truth, anyone?

"...psychopaths have little difficulty infiltrating the domains of...politics, law enforcement, (and) government." Dr. Robert Hare

by RubDMC (rubdmc yahoo! snot bomb) on Thu Apr 19th, 2007 at 11:11:39 AM EST
Years ago, when I started residency training (in Ob/Gyn, later switched to Internal Med) we did part of our training at a Catholic hospital. Not infrequently, we had women come in in the process of having a miscarriage - medically, an incomplete spontaneous abortion. And, if someone (usually in the ED) decided to do an ultrasound and detected a fetal heart beat, we were unable to take the patient to the OR to complete the procedure until the heart beat had ceased, unless the woman was hemorrhaging to the point of hemodynamic instability. And I'm talking about in the first trimester.

This is what we have become reduced to. We cannot make decisions, as physicians or women, based on the health risks to the women involved; we must make the decisions for reasons simply of politics. Will we ever really know who will have been negatively affected?

I'm so sorry about what happened to your sister, at all levels of her experience, but thank you for telling about it - helps to put in into perspective.

by stitchmd on Thu Apr 19th, 2007 at 11:12:30 AM EST
It should all be about intent in the eyes of the medical professional.  If the intent was to perform an unnecessary (medically) abortion, then I can live with this S,Ct. ruling when abortion occurs this late!  However, if the intent was to PHYSICALLY save the woman's life, then politics and religion should have nothing to do with this action and decision!

Now a more sticky question would be what if the intent was to mentally save the woman's life, but I think I will pass today on that one!???

by NG on Thu Apr 19th, 2007 at 11:32:27 AM EST
[ Parent ]
IANAL, but I read the majority and dissent opinions and the commentary at SCOTUSblog, and from what I understand, the standard D&E procedure hasn't been banned.  "Partial birth" is a non-medical term that appears in the legislation and parts of the opinions.  But the legislation and the opinions make clear that what's being banned is intact D&E - when the living fetus is delivered up to a specified anatomical landmark (the full head in a head-first delivery or the navel in a breach delivery) and then dismembered or killed.

The ban doesn't cover when the fetus is killed first, inside the womb, and then delivered "intact" or when the fetus is dismembered while inside the womb.

(The banned procedure also must be accompanied by the intent to perform an intact D&E, which can be surmised to some extent by how much dilation has been produced before the procedure begins - an intact D&E requires greater dilation than the standard D&E).

It's unclear what percentage of "partial birth abortions" are intact D&E's.  Some doctors prefer them generally because they involve less risk to the mother.  The upshot is that one procedure is being banned in preference for a somewhat riskier procedure.  This is why Ginsburg writes that the ruling doesn't save the life of a single fetus.  So it might be confusing to suggest that partial birth abortions are banned, in general.

Unless I'm confused, which is certainly a possibility.

by whisper in blue on Thu Apr 19th, 2007 at 02:54:13 PM EST


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