Katharine O'Connell

(WOMENSENEWS)–“Go ask your doctor.” That would be the predictable advice for lay people wondering exactly which surgical procedures could be outlawed by the Partial-Birth Abortion Ban Act, now undergoing final revision work in Congress.

Those who do ask their doctors, however, are apt to find that their physicians don’t necessarily understand the clinical implications of the about-to-be-passed law either. Many doctors and medical organizations say they assume it applies to just one procedure rarely used late in the second-trimester, known as intact dilation and extraction or intact D and X. However, they also say that since the language of the act is not specific, it could be interpreted as criminalizing all abortions.

The Washington-based American College of Obstetricians and Gynecologists, which represents 90 percent of U.S. board-certified obstetrician-gynecologists, opposes the ban, as does the Chicago-based American Medical Association, which represents 297,000 U.S. physicians in all specialties. Some smaller physician groups, such as the Holland, Michigan-based Association of Pro Life Obstetricians and Gynecologists, favor the act.

The Senate passed the ban in mid-March by a 64-33 vote, and the House passed it in early June by 282-139. The chambers face a hurdle in reconciling their two versions. While the Senate added a nonbinding amendment supporting the Supreme Court’s Roe v. Wade 1973 decision legalizing abortion, the bill’s lead House sponsors adamantly oppose including that language.

Doctors Subject to Fines, Imprisonment

According to the act, “any physician who . . . knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than two years, or both.”

Dr. Paul D. Blumenthal, an obstetrician-gynecologist at Baltimore’s Johns Hopkins Bayview Medical Center and professor at its Medical University, predicts that, if the act is made into law, some doctors would refuse to provide any second-trimester abortions under the threat of new criminal prosecution and civil liability.

One focus of medical objection to the act is its lack of precision about the issue of “viability,” or when a fetus could survive outside the womb. For many, viability is the boundary point, reached in the third trimester or very late in the second, when a fetus is considered fully human.

In a statement, the American Association of Obstetricians and Gynecologists says it “has never supported post-viability abortions except for the constitutionally-protected exception of saving the life or health of a woman” and that it continues to oppose state or federal legislation known as “partial-birth abortion bans.” The group says that descriptions of “partial-birth abortion,” in this act and in previous legislation, “are vague and do not delineate a specific procedure recognized in the medical literature.” The American Medical Association says it refuses to use the term.

Obstetrician-gynecologist Dr. Katharine O’Connell of New York’s Columbia Presbyterian Hospital says it is not possible to say what the law does or does not ban because the language is too vague.

“There’s no such thing as a ‘partial birth abortion,'” says O’Connell, a member of the New York-based advocacy group Physicians for Reproductive Choice and Health. “Right from the start the name has been coined to confuse the public,” she says. “There’s no such thing in the medical textbooks, it’s purely a political term.”

‘Bright Line’ in Act Called Blurry

O’Connell challenges the act’s assertion that the ban “will draw a bright line that clearly distinguishes abortion and infanticide.” Says O’Connell: “The line between personhood, between a fetus and a person, is the line of viability . . . Nothing is changed with this law regarding that line.”

Except when they are needed to save the health or life of a woman, abortions of a viable fetus are already illegal in most states. It is therefore widely assumed that the ban is moving in on abortions performed in the second trimester, or roughly the 12th through 24th week of pregnancy, when the fetus is not yet viable.

The proposed law itself defines partial-birth abortion–or those to be banned–as “an abortion in which (A) the person performing the abortion 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; and (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus . . .”

Other language in the act–“partial-birth abortions involve the killing of a child that is in the process, in fact mere inches away from, becoming a ‘person'”–leads some to believe “birth” is being redefined as any fetus leaving the vagina at any time, which could apply to all abortions.

Intact D and X Most Closely Described

Minneapolis obstetrician Dr. Steve Calvin says that the act describes and bans intact D and X, a procedure he says is not necessary because other options exist. One of 600 members of the Physicians’ Ad Hoc Coalition for Truth, a Washington, D.C.-based volunteer group formed to promote the ban and similar laws. Calvin says doctors’ views of the new ban would likely match their views on abortion generally. Doctors who oppose abortion, he says, will largely be in favor of the act.

Intact dilation and extraction, or intact D and X, is most often performed after the 19th week, when the fetus, while not yet viable, is strong enough to stay “intact” or in one piece. The fetus is pulled from the uterus as far as possible and the fetal head, which has grown too large to pass through the dilated cervix, is decompressed or partly crushed to permit vaginal delivery of an intact fetus.

Another second-trimester procedure that might–or might not–be banned by the act is dilation and evacuation, or D and E. As with intact D and X, the cervix is dilated and the fetus is pulled out through the vagina. The D and E is usually performed earlier than a D and X–or before the 19th week–and forceps are used to grasp the fetus. Being less developed, the fetus tends to come apart when grasped and exits the uterus in pieces, not intact. (Because it is done earlier–and more physicians have been trained in it–the D and E is much more common.)

A third procedure is induced labor, in which medications (in heavier doses than at full-term pregnancy) cause a labor process that propels the fetus out of the uterus. The 19th or 20th week is the earliest time labor can be induced.

Some anti-choice advocates find both the D and E and intact D and X objectionable because a physician destroys a “living” fetus. They prefer the more passive approach of induced labor, in which the fetus dies, but indirectly, whether from leaving the uterus or from whatever fatal defect may cause it to die during pregnancy, at birth or soon after. Critics of induced labor, however, say studies show it presents a greater risk of harmful complications for the woman than do the “surgical” procedures.

Ban Criticized for Restricting Medical Choice

Many doctors oppose the ban because they expect it to restrict the choices of patients and doctors when a pregnancy runs into trouble in the second trimester. O’Connell says this is the time–because of ultrasound tests or amniocentesis tests normally given at 18 to 20 weeks of pregnancy–when fatal birth defects are usually found. She says she sees one or two fatal defects each week in her practice.

Knowing a fetus will die during pregnancy or a short time after birth means parents must make crucial decisions based on all options described by the physician, including terminating the pregnancy or allowing the fatal flaw to take its course, with the fetus dying during pregnancy, at birth or soon after.

O’Connell says that while some women choose to let a fetal flaw to take its course, many women decide otherwise.

“These are horrendous times for anyone,” she says, referring to parents faced with a fetal defect. “But it’s not always when the fetus has a problem. We have mothers with heart disease or cancer or problems where they can’t continue the pregnancy without severe risk to their health. This law has no option for the health of the mother.”

Blumenthal, the Johns Hopkins obstetrician and gynecologist, agrees that the second trimester is often a crucial time when fetal problems are discovered.

“Absolutely it takes into the second trimester to find some of these conditions,” he says. In a June statement on the physicians’ Web site Medscape, Blumenthal describes skeletal dysplasia, a fatal fetal condition resulting in “the birth of infants who are destined to die within the first few minutes to hours of life and whose only experience of life is that of suffocation as they gasp in an attempt to breathe.”

If a couple decides to terminate such a pregnancy, he wrote, it is his duty to terminate it “using the safest, most effective procedure.” The act, however, would restrict his and his patients’ options both before and during surgery, he says.

Suzanne Batchelor has written on health and medicine for Medscape, CBS Healthwatch and the Texas Medical Association’s “Healthline Texas,” and for the national science series “Earth and Sky.”

For more information:

Physicians for Reproductive Choice and Health–
“PRCH Challenges Media to Use Accurate Language When Reporting So-Called ‘Partial-Birth’ Abortion Issues”:

The American College of Obstetricians and Gynecologists–
“Statement on So-Called ‘Partial Birth Abortion’ Laws By The American College of Obstetricians and Gynecologists”:

Physicians Ad Hoc Coalition for Truth: