Laurie Shrage, the author of Abortion and Social Responsibility: Depolarizing the Debate, is a Professor of Philosophy at California State Polytechnic University, Pomona. Below she looks at the Partial Birth Abortion Act.
Banning “Gruesome and Inhumane” Abortions
The Partial-Birth Abortion Ban Act, which Congress passed in 2003, prohibits a particular abortion procedure called “intact dilation and extraction” (intact D&E, or D&X). In 2000, the Supreme Court struck down Nebraska’s Partial-Birth Abortion statute (Stenberg v. Carhart) for failing to include an exception to preserve a woman’s health, and for vagueness. The problem of vagueness was that the language describing the proscribed procedure could allow an overbroad application of the law to other second-trimester procedures (especially, nonintact D&E, dilation and evacuation). The statute’s vagueness not only placed doctors in legal jeopardy, but could make the most commonly used and safe second-trimester abortion procedures unavailable to women, which would constitute a substantial obstacle to exercising their right to obtain a pre-viability abortion. Although the language of the federal ban is less vague, it also does not include an exception that permits the procedure to be performed when a physician determines that it is necessary to preserve a woman’s health. For this reason, many expected the Court to strike down this ban as well. Yet, the recent ruling in Gonzales v. Carhart upholds the federal act.
The Court’s reason for upholding the federal ban, despite its failure to include a health exception, is that there is disagreement in the medical community over whether intact D&E is ever necessary to preserve a woman’s health. In his majority opinion, Justice Kennedy writes “Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. Other considerations also support the Court’s conclusion, including the fact that safe alternatives to the prohibited procedure, such as D&E, are available. In addition, if intact D&E is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act’s prohibition only applies to the delivery of ‘a living fetus.’. . . ” Essentially, the Court determined that the uncertain and marginal benefits to a woman from intact D&E are not enough to override the State’s interest in protecting the life of the fetus.
In Casey (1992), the Court asserted that “the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.”  Under Casey, the government can regulate abortion to pursue its interest in protecting fetal life as long as its regulations do not place an “undue burden” on a woman seeking an abortion. In upholding the federal ban on intact D&E, the Court has decided that this ban does not place an undue burden on women because other comparably safe procedures are available (nonintact D&E), and because it allows for the use of intact D&E on non-living fetuses.
There are a lot of issues that this ruling raises. Given that medical experts disagree on the medical necessity of intact D&E in some cases, one issue is whether the Court has substituted its non-expert medical judgment for that of doctors. In her dissenting opinion, Justice Ginsburg writes,
Intact D&E, plaintiffs’ experts explained, provides safety benefits over D&E by dismemberment for several reasons: First, intact D&E minimizes the number of times a physician must insert instruments through the cervix and into the uterus, and thereby reduces the risk of trauma to, and perforation of, the cervix and uterus—the most serious complication associated with nonintact D&E. . . Second, removing the fetus intact, instead of dismembering it in utero, decreases the likelihood that fetal tissue will be retained in the uterus, a condition that can cause infection, hemorrhage, and infertility.
Given that intact D&E has some “safety benefits,” and given that standard D&E (in which the fetus is dismembered before it is removed from the uterus) would seem equally “gruesome and inhumane” (as the ruling describes intact D&E), why should the government ban one procedure and allow the other? Kennedy writes, “unlike intact D&E, standard D&E does not involve a delivery followed by a fatal act.” Evidently, the morally relevant difference between these two procedures is where the fetus is at the moment it is killed. If its body is partially pulled out of the womb, then it is partially born, and it cannot be killed in a brutal way. If its body is completely within in the womb, then it can be cut into pieces.
Kennedy gives other reasons for distinguishing intact and nonintact D&E, but they seem rather paternalistic. He writes,
It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.
Would the mother have less grief if she learned that she allowed a doctor to dismember her fetus? Presumably the Court could not think so. However, a law banning all forms of D&E could be viewed as creating a substantial obstacle or undue burden for a woman seeking an abortion. The only procedure left in the second trimester would be medical induction (induced stillbirth by administering drugs to the mother and fetus), which evidently poses greater health risks than D&E.
Expressing paternalistic concern toward doctors rather than women, Kennedy writes,
Congress was concerned, furthermore, with the effects on the medical community and on its reputation caused by the practice of partial-birth abortion. The findings in the Act explain: “Partial-birth abortion … confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life.” …There can be no doubt the government “has an interest in protecting the integrity and ethics of the medical profession.”
Here the Court is claiming that the use of intact D&E undermines the reputation and ethics of doctors, while presumably the use of nonintact D&E does not. With intact D&E, “the physician acts directly against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb…” What’s odd about the emphasis on the partial delivery of the fetus is that, when intact D&E is performed before viability, even if the doctor could remove the fetus without killing it, it would die on its own. That is, by removing the fetus from the mother’s body before viability, “the physician acts directly against the physical life of a child,” even if the doctor could perform intact D&E without collapsing the skull. Alternatively, the Court could be drawing a distinction here between removing the fetus and then allowing it to die, and removing the fetus (partially) and then performing an act that kills it. A doctor can only perform an act that kills the fetus if the fetus has not been removed partially or completely. This explains the odd loop hole that “if intact D&E is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure.” The upshot of this ruling is that, as long as the doctor kills the fetus in advance, she can perform intact D&E.
Perhaps it is more humane to kill a fetus at this stage of pregnancy with an injection of a lethal drug, than by cutting into the base of its skull and removing the contents. Even criminals subject to the death penalty must be killed humanely, and without cruelty, so why not fetuses? By requiring doctors to kill even pre-viable fetuses with an injection prior to intact D&E, the government may protect those who “struggle with grief more anguished” when informed about various abortion methods, and it also may protect doctors’ reputations and professional ethics. But if this ruling permits intact D&E on a fetus that has been killed by lethal injection first, then banning “partial-birth” abortion is not an attempt to draw a bright line between infanticide and abortion, as Solicitor General Clement has alleged, but an attempt to require that second trimester fetuses be killed or aborted in a more humane way.