Late-term abortion ban goes forward

Court challenges are expected if the bill is signed into law.

By Joel B. Finkelstein, amednews staff. Oct. 20, 2003.

Washington -- Congress has moved one step closer to banning intact dilatation and extraction -- called "partial-birth abortion" by its opponents -- and creating stiff penalties for physicians who provide the procedure.

The House on Oct. 2 voted 281-142 to agree to a final bill worked out by a conference committee charged with ironing out differences between the House and Senate versions of the legislation. At press time, the Senate had not voted on the measure but was widely expected to approve it.

How the bill defines it
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The bill does not include an exception for the health of the woman that had been proposed by Democrats. Abortion rights groups have promised to challenge the legislation in court if it becomes law, as expected.

Several physician groups, including the American Medical Association, the American College of Obstetricians and Gynecologists and the American Public Health Assn., oppose bans on intact D&X as an undue imposition of government oversight on physicians' ability to choose the most appropriate treatment for their patients.

The final bill does not contain language included in the original Senate measure expressing support for the Roe v. Wade decision and the right of women to have abortions. It contains criminal penalties of up to two years in prison for physicians who perform the procedure. Physicians also can be sued for damages by the husbands or parents, in the case of minors, of women who undergo it.

President Bush, who has vowed to sign the bill once it reaches his desk, said the House action "is an important step that will help us continue to build a culture of life in America."

Abortion rights activists accused Bush and lawmakers who supported the legislation of being more interested in breathing life into a national debate over the legality of abortions than in protecting women's health.

Abortions are legal, and how they are performed should be left in the hands of physicians, who are better qualified to make those decisions than are members of Congress, said Vicki A. Saporta, president and CEO of the National Abortion Federation, a group representing facilities and physicians who provide abortions.

"Women's lives and health should not depend on political agendas," she said.

The bill is blatantly unconstitutional, Saporta contended.

"Nothing they have done [to refine the legislation] has corrected constitutional flaws," she said. The federation is one of the groups planning to fight the bill in the courts as soon as it passes into law.

Authors of the legislation did not include a fetus viability requirement in their definition of the procedure, a provision that would have brought the legislation more in line with abortion laws already on the books in 41 states and the District of Columbia.

Constitutional questions

Saporta said this bill also failed to meet constitutional requirements in several ways that have led to successful court challenges in state-based attempts to ban abortion procedures. One example is the lack of an exception for preserving the health and welfare of the woman.

That precedent was set in 2000 by the U.S. Supreme Court, which ruled that a "state cannot subject women's health to significant risk both [when the pregnancy itself creates a threat to health], and also where state regulations force women to use riskier methods of abortion. Our cases have repeatedly invalidated statutes that in the process of regulating the methods of abortion, imposed significant health risks."

But the abortion method described by the legislation is never the best, safest or most effective procedure to use, said Curtis R. Cook, MD, an obstetrician-gynecologist at Spectrum Health in Grand Rapids, Mich.

Dr. Cook specializes in complicated pregnancies and is a founding member of the Physicians' Ad Hoc Coalition for Truth, a group of ACOG fellows and members who support a ban on intact D&X. He said his group had concerns that this type of procedure was risky for women and could threaten not only their immediate health, but their future ability to have a child.

The bill's authors share this view. The legislation states that the procedure described is never medically necessary. But experts doubt this language will carry much weight with the judiciary.

Opponents of the ban also argue that the legislation is too vague to ensure that the law would not be applied to any of a number of different abortion procedures that are used after 12 weeks of gestation.

Physicians should not have to choose between doing what is best for their patients and risking criminal penalties, said NAF's Saporta. She added that the bill conflicted with previous court decisions establishing women's right to abortions.

Dr. Cook disagrees that the definition is too vague or that physicians will be left without safe and effective procedures under the legislation. He said that in his experience, the ban would have no effect on how he practices or what procedures he has available to help his patients.

ADDITIONAL INFORMATION:

How the bill defines it

The bill says "partial-birth abortion" is a procedure in which the person performing it:

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.

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