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The So-Called "Partial Birth" Abortion
Later Abortions: Questions and Answers
Now pending in Congress are two bills, H.R. 1833 and S. 939, which would ban a particular
type of later abortion procedure. Those promoting these bills have used sensationalized
drawings and graphic language to attempt to inflame opposition to this surgery.
They have left out or distorted the realities that lead to a difficult abortion
decision late in pregnancy; the facts about how this procedure is performed; and
how rarely this surgery takes place. The National Abortion Federation (NAF) is the
national professional association of abortion providers. We set standards for quality
care and provide accredited continuing medical education. In this set of questions
and answers, NAF will provide the facts about these later abortions and the personal
and political context surrounding this issue.
How often do later abortions happen?
Statistical information compiled by the Alan Guttmacher Institute, a private institution
for reproductive health research and policy analysis, and the National Abortion
Federation (NAF), the national professional association of abortion providers, documents
The overwhelming majority -- 95.5 percent -- of all abortions take place at or before
15 weeks' gestation, in the first or very early second trimester. About 90%-95%
of these are in the first trimester. Only a little over 1/2 of one percent of all
abortions take place at or after 20 weeks' gestation. Fewer than 600 abortions per
year occur in the third trimester of pregnancy, and all of these are performed due
to severe fetal abnormality or risk to the life of the pregnant woman.(1)
What does this tell us? It tells us that virtually all women seeking abortions are
doing so early in pregnancy -- that women do not want to have later abortions. Women
do not end a pregnancy at any stage, particularly a later one, lightly or cavalierly.
Sometimes, though, unavoidable circumstances force them to confront this decision,
and they make it responsibly, carefully, with a great deal of thought.
Why do women seek abortions later in pregnancy?
Women seeking later abortions do so for very serious reasons. All abortions taking
place in the third trimester are for reasons of serious fetal abnormality or a risk
to the life of the woman. Many abortions that occur from 18 weeks' gestation through
the end of the second trimester are for this reason as well. Unfortunately, though
medical science has developed sophisticated testing to determine potential medical
problems, often these teste are not fully accurate until later in pregnancy. Some
women may undergo several ultrasounds and other tests and be told that all is well,
only to have a devastating anomaly detected at the 28th week of pregnancy, or have
a previous condition such as brittle diabetes suddenly flare up so seriously that
their own health and even lives are threatened. These women are faced with the painful
and deeply personal choice of ending a wanted pregnancy.
These are agonizing decisions only the people involved can make.
* Vikki Smith, a mother of two from Illinois. Multiple, devastating anomalies would
have left her son with a short, painful life expectancy. She and her husband made
"the most loving decision we could have made," to terminate the pregnancy.
* Tammy and Mitch Watts, who live on the Monterey Peninsula in California. In the
spring of 1995, Tammy and her husband had dto make the agonizing choice of ending
a wanted pregnancy, which would have been their first child, at 28 weeks. The baby
would have been born with devastating, ultimately lethal anomalies related to a
chromosomal abnormality called trisomy-13. Tammy told a House subcommittee holding
hearings on this issue: "I could have carried this pregnancy to term, knowing
everything that was wrong. I could have gone on for two more months, doing everything
that an expectant mother does, but knowing my baby was going to die, and would probably
suffer a great deal before dying. My husband and I would have had to endure that
knowledge, and watch that suffering. We could never have survived that."(2)
* Viki Wilson, RN and Bill Wilson, MD, from Fresno, California. Last year, the Wilsons
were expecting their third child when they received a devastating diagnosis at 36
weeks of pregnancy: encephalocoele with severe microcephaly, with a large portion
of the brain formed outside the skull. They made the painful choice to have an abortion.
* Becky Bruce, from Ohio. At 22 weeks' gestation, her ultrasound diagnosed caudal
regression syndrome, a lethal abnormality in which the spine fails to form. She
and her husband decided to seek an abortion. She wrote to a local newspaper, "We
were met (at the clinic) every day by abortion protestors screaming....These people
had no compassion and were not willing to listen to the facts of our dilemma. I
was extremely grateful to (the doctor) and his staff for treating us with compassion
and understanding for the difficult decision we had made."(3)
What is the procedure that anti-abortion politicians are trying to ban?
It is a surgical technique performed in some later abortions in which the fetus
is removed intact. The procedure is referred to by physicians as intact D&E
(dilation and evacuation), modified D&E, or D&X (dilation and extraction).
Although the woman's cervix is dilated using a natural dilator called laminaria,
her cervical opening is still not as large as it would need to be to remove the
fetus without injuring her. Therefore, the doctor has to remove some fluid (the
amount varies based on many physical factors) from the cranium in order to bring
the head out without causing tears or bleeding in the woman's cervix.
The anti-abortion movement has decided to call this procedure "partial-birth
abortion." This name was invented solely for use in this legislation, and is
not a medical term. It was made up in an effort to find the most inflammatory and
upsetting term to use for this legislation. There is no such thing as a "partial-birth
abortion," and that is not what this procedure is. The misleading information
that has been circulated about this surgery is discussed in the section entitled
How often is it performed?
Only two physicians -- one in Ohio and one in California -- use this technique as
their preferred method for abortions at or after 20 weeks. Other physicians may
also use this method occasionally, when, in their clinical judgement, it is indicated.
Based on documentation from the two primary physicians using the procedure, approximately
450 abortions per year are performed this way.(4)
Why do some doctors prefer to use it?
The physicians who use intact or modified D&E do so because, in their clinical
experience, they find it the safest and most appropriate for the patients they treat.
They have found that it prevents unnecessary bleeding and has a very low complication
rate. Moreover, reaction from their patients is positive: many patients report that
they found the surgery less painful and difficult than expected, particularly considering
the severe circumstances that led them to need an abortion.
When this procedure is performed in the event of severe fetal anomaly, as is the
situation in the majority of cases, it has other benefits as well. Genetic experts
and pathologists can better analyze what went wrong if the fetus is intact. This
allows them to assist the family in planning future pregnancies and dealing with
fears of a serious problem recurring. Also, many families who are ending wanted
pregnancies due to serious anomalies want a chance to say goodbye. Removing the
fetus intact meant that the family can see it, hold it, and mourn their loss. Terminating
a wanted pregnancy is devastating, and this helps some families with the grieving
process. Viki Wilson wrote, "If we had not had that opportunity, I do not believe
our family would have had a healthy survival."
If it's used so rarely, why is it so important to defeat this ban?
This ban is bad medicine and bad public policy for many reasons.
* No matter how few cases there are, in the cases where women and families have
needed this procedure, it has been vital to them that it is available. We should
not take medical options away from people in need.
* The legislation itself is vaguely and non-medically worded, and could be enforced
far more broadly to virtually ban many later abortions done by any procedure. The
bills are based on the term "partial-birth abortion," a term which is
unknown and undefined in the medical community. Their definition of this term, to
"partially vaginally deliver(s) a living fetus" is again bizarre and vague,
according to physicians who have reviewed it. They note that many physicians would
not understand the law's meaning and might hesitate to perform any second-trimester
abortion for fear of prosecution.(5)
* Passing federal legislation against a surgical procedure places Congress in an
inappropriate position of deciding for women and for doctors what is the best treatment
for them to receive or give. This has far-reaching implications. What other types
of surgery might Congress ban if a special-interest group sentationalizes them?
This sort of intrusion is unprecedented. The Center for Reproductive Law and Policy
reports that "Never before has Congress intruded directly into the practice
of medicine by outlawing a safe medical procedure that is necessary in some circumstances."(6)
* It is wrong to criminalize physicians for using what their professional experience
and expert medical judgement tells them is the best surgery for a particular patient
in a specific situation.
* Anti-choice politicians know that the public does not support criminalizing women
for seeking abortion services, so the legislation treats women as ignorant pawns
of physicians. The bills create a civil tort allowing women to sue their physicians
for damages for performing this surgery. In other words, a physician who performs
this procedure because, in his or her best judgement, it is the safest and most
appropriate surgery in the particular situation, could still be sued by the woman
for civil damages even though the procedure is performed with her full knowledge
and consent. This, too is legally unprecedented.(7)
What about so-called "elective" abortions in the later second trimester?
Not all later abortions occur due to fetal anomaly or maternal health indications,
but the circumstances which women confront in making these decisions are also very
Some women are victims of rape or incest, traumatic experiences that they desperately
hope will not lead to pregnancy. In some cases, these women are so deeply upset
by the sexual assault that they cannot recognize or cope with the pregnancy until
they are in to their second trimester.
Other women do not recognize until well into their pregnancy that they are pregnant.
Their pregnancies may be misdiagnosed; they may believe that the spotting and physical
changes they notice reflect early menopause; or they may have irregular menstrual
cycles and so few physical changes early on that they are not aware they are pregnant
until the second trimester.
Still others are victims of burdensome laws that, rather than improving women's
health care, merely mandate medically unnecessary delays. Since the passage of laws
mandating parental involvement in the abortion decision, Minnesota and Mississippi
have seen the ratio of late to early abortions for teenagers increase by over 25%
and 18% respectively.(8) Though over 60% of all teenagers consult a parent about
their abortion decision(9), those who do not often have legitimate fears about doing
so. Restrictive laws that ignore these fears lead to later abortions.
Laws that mandate waiting periods before a woman can obtain an abortion also lead
to unnecessary delays in obtaining care. A "simple" 24-hour waiting period,
combined with a woman's other circumstances and limited provider access, in practice
often means delays of a week or more.(10) Such laws are promoted by anti-abortion
It would be inhumane and medically inappropriate to pass a federal law which would
limit women's medical options in these difficult situations. Burdensome laws do
not prevent women from having later abortions; indeed, the documentation above indicates
that other anti-abortion laws are responsible for increases in later abortions.
The proposed legislation would only increase the physical and emotional risks to
the women involved.
What are the misconceptions about this procedure?
* Anti-abortion groups claim that the fetus is still alive until the very end of
the procedure. This is absolutely untrue. Neurological fetal demise is induced,
either before the procedure begins or early in the procedure, by the steps taken
to prepare the woman for surgery. (This includes narcotic analgesia, extensive surgical
dilation, and rupture of membranes.) Dr. James McMahon of California calls statements
to the contrary preposterous. Dr. Martin Haskell of Ohio agrees with Dr.McMahon's
assessment and submitted a written statement to that effect to Congressman Charles
Canady, Chair of the House Judiciary Subcommittee on the Constitution, following
the Subcommittee's hearings on the legislation.
* Anti-abortion groups have also asserted that the fetus in these cases feels pain.
Neurologically, according to commentary by neurologist Dr. Dominick Purpura, Dean
of the Albert Einstein Medical School, the synaptic connections that would permit
perception of pain do not exist until around the 28th week of gestation(11). In
the event that there is any possibility of pain perception in later-term fetuses
prior to fetal demise, the narcotic analgesia given to the pregnant woman prevents
any such sensation.
Of course, most of the information quoted by the anti-abortion politicians advocating
this ban is several years old, and in most cases, involves brief quotes in secondary
source materials such as newspaper articles. The physicians who perform this procedure
have unequivocally refuted these anti-choice arguments in materials presented directly
to the Congressional committee considering this legislation. Haskell noted in his
letter to the Subcommittee that public officials should be aware that often, when
quoted in public, a person's remarks are misrepresented, misunderstood or taken
out of context. He wrote "Let me state unequivocally that taken as a whole
these lay articles are misleading and misrepresent the nature of this surgery. Articles
written for the professional community take for granted a certain amount of knowledge
in the reader. Consequently they do not describe every detail."(12)
Is this legislation constitutional?
In-depth legal analysis by the Center for Reproductive Law & Policy clearly
indicates that this legislation, known by the misnomer "The Partial-Birth Abortion
Ban Act of 1995," is clearly unconstitutional under the standard set forth
by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey
(1993). The Center's analysis states "The bill would impose an undue burden...by
limiting the physician's discretion to choose the most appropriate method of abortion
based on the medical needs of his or her patient. The Supreme Court has consistently
held that physicians must retain broad discretion to determine the course of treatment
for women seeking abortions."(13).
Anti-abortion lobbyists and politicians have one goal: to ban abortion entirely.
Since they cannot achieve such a ban due to continuing pro-choice public opinion,
they have chosen to attack abortion's availability through a number of political
strategies. One of these is to focus public attention on a very small number of
later abortions and banning one procedure used to perform them, thereby opening
the door to criminalizing physicians for providing needed care to women. This is
just one among many legislative attacks on choice mounted by the 104th Congress,
designed to impede or prevent access to abortion services.
The question remains: Who should decide? In the always-difficult circumstances surrounding
a later abortion, should Congress intrude on such a private matter? Legislators
and lobbyists do not belong in the examining room, the counseling room or the operating
room. Private decisions about ending a pregnancy and the best surgical method to
do that can only be made by the pregnant woman in consultation with her physician.
(1) Henshaw, S.K. and Van Vort, J., eds. Abortion Factbook. The Alan Guttmacher
Institute, 1992. Also, The National Abortion Federation, quarterly statistical reports,
(2) Watts, T. Testimony before the Constitution Subcommittee of the House Judiciary
Committee, in Opposition to H.R. 1833, the "Partial-Birth Abortion Ban Act
of 1995," June 15, 1995.
(3) Bruce, B. Letters to the Editor, Dayton Daily News, June 14, 1995.
(4) Haskell, M., MD, and McMahon, J., MD. Personal interviews with National Abortion
Federation staff, and National Abortion Federation quarterly statistics, 1995.
(5) Robinson, J.C., MD, MPH. Testimony before the Constitution Subcommittee of the
House Judiciary Committee, in Opposition to H.R. 1833, the "Partial-Birth Abortion
Ban Act of 1995," June 15, 1995. Additionally, personal testimony of Philip
Stubblefield, MD, and Jaroslav Hulka, MD, to the National Abortion Federation.
(6) Kolbert, K. Testimony submitted to the Constitution Subcommittee of the House
Judiciary Committee, in Opposition to H.R. 1833, the "Partial-Birth Abortion
Ban Act of 1995," June 22, 1995.
(7) Kolbert, K. Op. Cit., p. 11-12.
(8) "Percent Abortions of Second Trimester: Minnesota Residents," Plaintiff's
Exhibit 122, Hodgson v. Minnesota 648 F. Sup. 756 (D. Minn, 1986). Also, Althaus,
F., and Henshaw, S.K., "The Effects of Mandatory Delay Laws on Abortion Patients
and Providers," Family Planning Perspectives, Sept./Oct. 1994.
(9) S. Henshaw and K. Kost, "Parental Involvement in Minors' Abortion Decisions,"
Family Planning Perspectives Vo. 24, No. 5 (Sept./Oct. 1992).
(10) Althaus, F. and Henshaw, S.K. Op. cit.
(11) Jaworski, P., moderator. "Thinking About 'The Silent Scream,'" as
transcribed in Abortion Rights and Fetal 'Personhood', Ed Doerr, ed., Centerline
(12) Haskell, M., MD. Letter to Congressman Charles D. Canady, Chair, House Judiciary
Subcommittee on the Constitution, June 27, 1995.
(13) Kolbert, K. Op. cit.
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