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ALUMNI
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CONGRESS, THE SUPREME COURT, AND LATE TERM ABORTION: IMPLICATIONS FOR MEDICINE AND BIOETHICS

"" Ben Rich
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In April of this year, the U.S. Supreme Court issued its decision concerning the constitutionality of The Partial Birth Abortion Ban Act (PBABA). The Court had in 2000 ruled that a very similar statute in Nebraska was unconstitutional because it was ambiguous as to the procedures prohibited and because it failed to provide an exception to the ban when a late-term abortion was necessary to protect the health of the woman. In a 5-4 decision written by Justice Anthony Kennedy, the Court in the case of Gonzales v. Carhart distinguished its prior ruling from the facts of this case and upheld the Congressional ban despite its failure to provide an exception when a woman's health was at risk.

Question: What are the essential features of The Partial Birth Abortion Ban Act?

The Act punishes "knowingly perform[ing] a partial birth abortion," which it defines as a procedure in which the person "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 fetus." Conviction for performing the prohibited procedure will subject the defendant to a fine of as much as $250,000, up to two years in prison, or both, as well as the possibility of civil monetary damages to the husband or, in the event the procedure is performed on a minor, the parents of the pregnant woman.

Question: Where has the medical profession stood on the appropriateness of this federal legislation?

Interestingly, some of the major voices of organized medicine took starkly contrasting positions. The American College of Obstetricians and Gynecologists (ACOG) opposed the ban because "the intervention of legislative bodies into medical decision-making is inappropriate, ill-advised and dangerous." Furthermore, ACOG noted that the term "partial birth abortion" is "a nonmedical term apparently referring to a particular abortion procedure known as intact dilatation and extraction (intact D&X), a rare variant on a more common midterm abortion procedure known as dilatation and evacuation (D&E)." While there may be no circumstance in which an intact D&X is the only means of protecting the life or preserving the health of the pregnant woman, "it may be the best or most appropriate procedure in a particular circumstance … and only the doctor, in consultation with the patient … can make this decision."

The American Medical Association agreed to support the proposed legislation once two provisions were added to the bill: 1) that the physician's action must be "deliberate and intentional," and 2) that the accused physician be able to secure a review of the medical necessity of the procedure by the appropriate medical board.

Question: How did the Court arrive at the conclusion that Congress had the authority to ban a particular medical procedure?

The Opinion of the Court asserts that PBABA has remedied the vagueness flaw in the Nebraska ban by unambiguously defining the banned procedure, complete with critically important anatomical benchmarks, and further provided that in order to violate the law the physician must act "deliberately and intentionally." As for PBABA's failure to contain an exception to the ban when the procedure may be necessary to protect the health of the pregnant woman, Congress had conducted hearings on the issue of late-term abortions and subsequently found and declared in section 2 of the legislation: "A moral, medical, and ethical consensus exists that the practice of performing a partial birth abortion … is a gruesome and inhumane procedure that is never medically necessary and should be prohibited." The opinion notes that "medical uncertainty persists" whether an "intact D&E has some safety advantages … over D&E for some women in some circumstances." In the opinion of the Court majority, the government's compelling interest in "promoting respect for human life at all stages of pregnancy" provides a sufficient constitutional basis for Congress to legislate in the face of clinical uncertainty.

Question: What are some of the most significant implications of the Supreme Court decision for physicians?

The most direct impact of this decision will be on the relatively small number of physicians who perform abortions later in pregnancy and whose primary concern is to terminate the pregnancy in the manner that, in their clinical judgment, poses the least risk of harm to the pregnant woman. It is difficult to argue that the force of PBABA will not have a chilling effect upon how such physicians evaluate risk and select among procedural options. The impact of PBABA could fall disproportionately upon teenagers and minorities, for they have been found to be most likely to conceal pregnancies or lack access to primary and/or prenatal care.

The Opinion of the Court notes that "Congress was concerned … with the effects on the medical community and on its reputation caused by the practice of partial-birth abortion … There can be no doubt the government has an interest in protecting the ethics of the medical profession." Indeed, this governmental interest would seem to be the basis for the ban, not preserving fetal life, since as the dissenters point out, this is a decision "that saves no fetus from destruction." Rather, it precludes the utilization of one particular means of ending fetal life. Although an objective layperson reading the Court's description of the procedures that are permitted and the one that is now banned may find it difficult to discern precisely how the latter is appreciably more grisly or inhuman than the former, the Court majority clearly believes that through PBABA Congress was drawing a clear distinction between an acceptable late term abortion and a form of infanticide.

The dissenters suggest that the zealous pursuit of the moral concerns of some have motivated the Court majority to abandon any pretense of neutral language, consistently invoking instead charged terms by referring to physicians as "abortion doctors" and the fetus as a "baby." The state interest relied upon strongly suggests that the medical profession cannot be trusted to set and maintain professional practice standards that are consistent with prevailing principles of medical ethics and societal norms.

The pointed dissenting opinion declares the decision "alarming" not only because it fails to respect the precedent laid down in prior decisions of the court on abortion, but also because "it tolerates, indeed it applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by ACOG. As for the testimony before Congress in the hearings on PBABA, the dissenters note: "None of the six physicians… had ever performed an intact D&E. Several did not provide abortion services at all; and one was not even an obgyn."

Question: What does this case suggest about the future of abortion politics?

Commentators have suggested that the decision will make the abortion issue as compelling to the pro-choice as the pro-life camps in the 2008 elections. There is also likely to be a flurry of bills in the legislatures of conservative states seeking to ban the procedure. Finally, there will be legal challenges to any prosecution of physicians for violating the ban, arguing among other things that the requisite intent to violate the statute cannot be proven. In sum, abortion politics will continue to be as visible and volatile in the years to come as in the years pass. As the aphorism states: the more things change the more they stay the same.

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  "It became clear to me that where I wanted to be in academia was dealing with critical issues in biomedical ethics and bringing my legal background to bear on these dilemmas." — Ben Rich  
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