The So-Called "Partial Birth" Abortion Ban

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The So-Called "Partial Birth" Abortion Ban...

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 following:

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 "misconceptions."

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 serious.

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 groups.

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).

Conclusion

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.
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(1) Henshaw, S.K. and Van Vort, J., eds. Abortion Factbook. The Alan Guttmacher Institute, 1992. Also, The National Abortion Federation, quarterly statistical reports, 1994.

(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 Press, 1989.

(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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