Partial birth abortion, Part 2

Kindness and truth shall meet, justice and peace shall kiss. -- Psalm 85:10 (NAB, 1st ed.)

"Justice and Mercy" by sculptor Glynn Acree,
in the courtyard of the Cumberland School of Law,
Samford University, Birmingham, Alabama.

In my first post on partial birth abortion, I started to respond to some of the questions and comments posted by one of my Facebook friends in response to a post I had made the morning of the election regarding a candidate's stand on partial birth abortion. That response was getting pretty lengthy, though, so I decided to break it up to make it a bit more readable. (An act of mercy to both of us! :-))

When I came upon this photo of this beautiful statue, I knew that it was perfect for this post, partly because I am going to be dealing with the two 1973 Supreme Court cases that legalized abortion in the U.S. I also love it, though, because it reminds me of the Scripture quote at the top of this post, which I pray will guide all my discussions and conversations on this and other "hot topics" from this time forward. Holy Spirit, help!

When I left off my first post, I mentioned the common understanding that partial birth and other late-term abortions occur only in the case of fetal abnormality, when the fetus is highly unlikely to survive after birth, or when the life of the mother is at stake. To address this, we first need to review two important holdings of the two U.S. Supreme Court cases that legalized abortion in the U.S.

Most people are familiar with the fact that in Roe v. Wade the U.S. Supreme Court held the following:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [410 U.S. 113, 165]   may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.[1]

Many people do not realize, however, that there was a companion case to Roe called Doe v. Bolton. In their opinion on Roe, the justices explicitly said, "That opinion [Doe] and this one, of course, are to be read together."[2]

In Doe v. Bolton, the Supreme Court held that

We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the wellbeing of the patient. All these factors may relate to health. [3]

In the years following the Roe and Doe decisions, this broad definition of "health" effectively led to abortion on demand through all 9 months of pregnancy. It allowed a physician to judge that any of the factors listed in Doe could justify making an exception to a regulation and performing an abortion.

One of the few laws that has been able to restrict this definition of health was the Partial-Birth Abortion Ban Act of 2003. The act states that the prohibition on partial birth abortions "does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself." [4]

The ban was immediately challenged, in part because of the limit of the exception to the mother's physical health. When the case went to the Supreme Court in Gonzales v. Carhart, the ban was upheld. Justice Anthony Kennedy, writing for the majority, stated

The Court assumes the Act's prohibition would be unconstitutional, under controlling precedents, if it "subject[ed] [women] to significant health risks." Id., at 328. Whether the Act creates such risks was, however, a contested factual question below: The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their positions. ... 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"... [5]

Nevertheless, in light of the fact that there were over 13,000 abortions after 21 weeks of pregnancy in 2011 (as noted in my previous post), are these abortions truly taking place only in exceptional situations of fetal abnormality or when the life of the mother is at risk? Until recently, it has been very difficult to answer that question, but a study published in the December 2013 issue of Perspectives on Sexual and Reproductive Health provides a clue.

According to the abstract of the article available on the Guttmacher Institute web site, the study, as part of a larger study, compared 272 women who received an abortion at or after 20 weeks’ gestation with 169 who received first-trimester abortions at 16 facilities across the country in 2008–2010. In summarizing the results, the authors wrote, "Most women seeking later abortion fit at least one of five profiles: They were raising children alone, were depressed or using illicit substances, were in conflict with a male partner or experiencing domestic violence, had trouble deciding and then had access problems, or were young and nulliparous."[6]

Dr. Elizabeth Johnson of the Lozier Institute, in commenting on this study, noted that this study "marks a notable departure from previous statements by abortion rights advocates that late-term abortions were rarely elective.  ... The authors acknowledge that, in fact, wider 'data suggests that most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.'"[7]

Well, it's getting late and I haven't even yet addressed the crucial question of, what about the women for whom a partial-birth abortion -- or any abortion, really -- is truly a matter of life and death? And what about the many others facing challenging situations for which abortion seems to be the only solution? But my brain is starting to shut down, so there's no way that I'm going to be able to get to those questions tonight. So I guess there will be a Part 3 at a date to be determined, hopefully in the not-too-distant future. Until then, may God bless you abundantly and keep you in His care!


Footnotes:
[1] Roe v. Wade, 410 U.S. 113 (1973), XI.1. Retrieved on November 13 2016 from http://caselaw.findlaw.com/us-supreme-court/410/113.html#t67.
[2] Roe v. Wade, 410 U.S. 113 (1973), XI.2. Retrieved on November 13 2016 from http://caselaw.findlaw.com/us-supreme-court/410/113.html#t67.
[3] Doe v. Wade, 410 U.S. 179 (1973), IV.C. Retrieved on November 13 2016 from http://caselaw.findlaw.com/us-supreme-court/410/179.html.
[4] S.3 - Partial-Birth Abortion Ban Act of 2003, Sec. 3.a. Retrieved on November 13 2016 from https://www.congress.gov/bill/108th-congress/senate-bill/3.
[5] Gonzales v. Carhart, 550 U.S. 124 (2007), 3.(b). Retrieved on November 13 2016 from http://caselaw.findlaw.com/us-supreme-court/550/124.html.
[6] Foster, Diana Green, and Kimport, Katrina, "Who Seeks Abortions at or after 20 Weeks?", Perspectives on Sexual and Reproductive Health, December 2013. Retrieved on November 13 2016 from http://caselaw.findlaw.com/us-supreme-court/550/124.html.
[7] Johnson, Elizabeth, "The Reality of Late-Term Abortion Procedures," January 20, 2015. Retrieved on November 13, 2016 from https://lozierinstitute.org/the-reality-of-late-term-abortion-procedures/.

Partial birth abortion, Part 1

You created my inmost being; you knit me together in my mother’s womb. I praise you because I am fearfully and wonderfully made... -- Psalm 139:13-14a (NIV)

Photo of 18-week-old living fetus,
as seen on the cover of the April 30, 1965 issue
of Life Magazine. Photo by Lennart Nilsson.

On the morning of the election last week, I posted a comment on Facebook about one candidate's position on what's commonly referred to as partial-birth abortion. One of my Facebook friends challenged me with several questions, legitimate questions that deserve a thoughtful reply.

Before I begin, I want to say something in response to the violent demonstrations that our nation has experienced in the last week following the elections. I've been struck more than ever by the importance in all our controversies of holding fast to our love for one another. Love does not mean saying, in effect, "I'm ok, you're ok." Rather, when we love, "kindness and truth shall meet." (Psalm 85:10) Or, as Carmelite nun and philosopher St. Edith Stein put it, "Don’t accept anything as truth if it is without love. And don’t accept anything as love if it is without truth. One without the other is a harmful lie." With that thought in mind, and with the help of the Holy Spirit, let's proceed.
 
As I reflected on my friend's questions, I felt that it might be helpful to group them into roughly two categories: the procedure itself, what it involves, its frequency, etc.; and the women who undergo the procedure, their needs, concerns, etc. I'm going to use this post to try to address the first category. I'll then follow up with another post on the second category.

In an effort to be as objective as possible, I asked myself, "Has my knowledge about this topic been gleaned solely from pro-life resources, which might be simply 'pro-life propaganda'?" Therefore, I've made an effort to find sources that are as free as possible of pro-life bias, such as the Guttmacher Institute and the records of the U.S. Congress and Supreme Court.

First, what exactly is a "partial-birth abortion"? 

This is a common term for a late-term abortion procedure known in the medical community as "intact dilation and extraction" (IDX). The Medical Dictionary portion of the Free Dictionary describes the procedure as follows:

IDX first involves administration of medications to cause the cervix to dilate. Dilation usually occurs over the course of several days. Next, the physician rotates the fetus to a footling breech position. The body of the fetus is then drawn out of the uterus feet first, until only the head remains inside the uterus. The physician then uses an instrument to puncture the base of the skull, which collapses the fetal head. Typically, the contents of the fetal head are then partially suctioned out, which results in the death of the fetus and reduces the size of the fetal head enough to allow it to pass through the cervix. The dead but otherwise intact fetus is then removed from the woman's body. [1]

The same source notes that the procedure "is typically performed between weeks 19 and 26 of pregnancy." It should be noted that, although there is some controversy over the subject, there is much evidence that the fetus is able to feel pain by 20 weeks gestation. (See www.doctorsonfetalpain.com for more information.)

But partial-birth abortion is rare, isn't it? 

The answer to this question depends on your perspective. For example, if you're talking about now, in November 2016, then yes, it is rare in the U.S. because of a Federal law passed in 2003 that made it illegal [2]. That law was challenged in court, but ultimately the constitutionality of the ban was upheld by the U.S. Supreme Court in 2007 in the case Gonzales v. Carhart. [3]
 
If you go back to the years before that law was passed, then again, whether or not the procedure was rare depends on your perspective. According to the Guttmacher Institute, "Abortions performed by dilation and extraction were estimated to account for 0.17% of all abortions in 2000." [4] That is a very small percentage of all abortions. However, according to the same report, there were a total of 1,313,000 abortions performed in 2000. [5] Therefore, there were approximately 2,232 abortions performed by dilation and extraction in 2000. Translating the percentage into an actual number makes it seem less rare, at least to me, but again, it depends on your perspective.

This information brought to my mind another question, one that my friend didn't ask: If partial-birth abortion has been illegal in the U.S. for almost 10 years, then have late-term abortions dropped, or are there other procedures used for late-term abortions?

The Guttmacher Institute September 2016 Fact Sheet on "Induced Abortion in the United States" cites statistics from 2011 and 2012. [6] According to the chart "When Women Have Abortions," calculated in weeks from the last menstrual period, 1.3% of all abortions that occurred in 2012 took place at 21 weeks of pregnancy or later. [7] The same fact sheet states that in 2011 there were approximately 1.06 million abortions performed in the U.S. [8] The fact sheet does not provide total number of abortions for 2012. Applying the 2012 percentage of abortions taking place at 21 weeks of pregnancy or later to the 2011 total number, in 2011 approximately 13,780 abortions took place at 21 weeks of pregnancy or later.

So, I wondered, if partial-birth abortion was illegal by 2011, then what methods were being used to perform these over 13,000 abortions? I found the following methods listed on the internet as abortion procedures that could be used after 20 weeks of pregnancy:

• Dilation and evacuation (D&E): "A surgical abortion performed during the second trimester of pregnancy by dilation of the cervix and removal of the fetus and other products of conception, usually by use of vacuum aspiration and surgical instruments." [9]
  
• Induction abortion: Abortion performed by inducing early labor and delivery. According to WebMD, "Starting (inducing) labor and delivery in the second or third trimester of a pregnancy is done using medicines. To prevent complications, the cervix may be slowly opened (dilated) with a device called a cervical (osmotic) dilator before the induction is started." [10]
  
  Wikipedia, citing several medical sources, states, "If medical staff observe signs of life, they may be required to provide care: emergency medical care if the child has a good chance of survival and palliative care if not. Induced fetal demise before termination of pregnancy after 20–21 weeks gestation is recommended to avoid this." [11] An IDX abortion in which the fetus dies inside the uterus does not fall under the ban on partial birth abortions.

My friend's next question had to do with when a partial-birth, or by extension, other late-term abortion takes place. The common understanding is that these abortions occur only when the fetus is highly unlikely to survive after birth or when the life of the mother is at stake. Answering this question requires bringing in several pieces of background information that will make this blog post even longer than it already is! Therefore, I'm going to address the question of when these abortions take place in a separate post. Stay tuned for Part 2!


Footnotes:
[1] partial birth abortion. (n.d.) Gale Encyclopedia of Medicine. (2008). Retrieved November 12 2016 from http://medical-dictionary.thefreedictionary.com/partial+birth+abortion
[2] Public Law 108-105--Nov. 5, 2003, 117 Stat. 1201. Retrieved November 12 2016 from www.congress.gov/108/plaws/publ105/PLAW-108publ105.pdf
[3] See www.law.cornell.edu/supremecourt/text/05-380, retrieved November 13 2016. See also en.wikipedia.org/wiki/Gonzales_v._Carhart, 
[4] Finer, Lawrence B., and Stanley K. Henshaw, "Abortion Incidence and Services in the United States in 2000," Perspectives on Sexual and Reproductive Health, Jan./Feb. 2004. Retrieved November 12 2016 from www.guttmacher.org/about/journals/psrh/2004/01/abortion-incidence-and-services-united-states-2000. 
[5] ibid. Retrieved November 12 2016 from www.guttmacher.org/sites/default/files/pdfs/tables/3500603t.html#t1
[6] "Induced Abortion in the United States," Guttmacher Institute Fact Sheet, September 2016. Retrieved on November 13 2016 from www.guttmacher.org/fact-sheet/induced-abortion-united-states.
[7] ibid. For a link direct to the chart, go to www.guttmacher.org/sites/default/files/images/whenwomenhaveabortionsgraph.png
[8] ibid.
[9] dilation and evacuation. (n.d.) The American Heritage® Medical Dictionary. (2007). Retrieved November 13 2016 from http://medical-dictionary.thefreedictionary.com/dilation+and+evacuation 
[10] See www.webmd.com/women/induction-abortion, retrieved on November 13 2016.
[11] "Late termination of pregnancy," Wikipedia.com, retrieved on November 13 2016 from https://en.wikipedia.org/wiki/Late_termination_of_pregnancy#Methods.