Intact dilation and extraction (D&E;), a procedure commonly known as partial-birth abortion, can no longer be performed in any circumstances, including situations in which the mother’s life is at risk, the Supreme Court ruled in a 5–4 decision two weeks ago in the case of Gonzales v. Carhart.

The decision specifically addresses the Partial-Birth Abortion Ban Act of 2003, a law that attempted a narrow ban on a single type of abortion that the law’s text described as an “unnecessary to preserve the health of the mother” that “pose[s] serious risks to the long-term health of women.” The decision faced strong dissent from Justice Ginsberg and others, who argued that “numerous…extraordinarily accomplished medical experts” believe that sometimes “intact D&E; is safer…and necessary to protect women’s health.”

Partial-birth abortion is defined as a procedure in which a fetus is destroyed when partially outside of the mother’s body. A 2003 study published in Perspectives on Sexual and Reproductive Health estimated that partial-birth abortions represented 17 percent of all abortions performed in 2000.

Intact D&E; is described in a variety of ways, which usually depend on the source. The Partial-Birth Abortion Ban Act quoted an abortion clinic nurse who witnessed a partial-birth. “The baby’s little fingers were clasping…and his little feet were kicking,” the nurse said. “Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out.”

Another perspective is represented in Ginsberg’s opinion, in which she described intact D&E; as a safer and less grisly procedure that normal D&Es;, which involve dismembering the fetus before extraction. Ginsberg said that intact D&E; “reduced the risk of trauma” to the mother because it “minimizes the number of times a physician must insert instruments,” “decreases…infection…and infertility,” and requires “less operating time.”

The majority opinion’s rhetoric focused on two aspects of intact D&E;: the element of fetal pain as it relates to the government’s duty to protect the fetus, and the availability of other methods. The minority opinion focused on harms to individual rights of women, poor data collection and failure to follow precedent.

Offering evidence of fetal pain, abortionfacts.com, a pro-life web site, points to the famous video “Silent Scream,” in which the fetus dodged the tool that was to be used to abort it, and then opened its mouth as if in pain once the tool made contact.

Studies have returned ambiguous results about fetal pain. The group that produced "Silent Scream" cites the 1996 report of Case Western Reserve University Professor of Neurosurgery Robert White: “The fetus within…20 weeks…is fully capable of experiencing pain.” White went on to describe partial-birth abortion as a “dreadfully painful experience.”

In contrast, a more recent Journal of the American Medical Association (JAMA) review attempts to summarize all data discovered up to the end of 2005. “[T]he capacity for conscious perception of pain can arise only…in the third trimester around 29 to 30 weeks,” it concludes based off of stress, behavioral, chemical, developmental and electroencephalographical research.

The legal argument pertained to the availability of other methods. The decision argued that since normal D&E;, a procedure in which the fetus is dismembered or otherwise terminated in the uterus before extraction, continues to be available, there was not additional risk to the mother. It also argued that “substantial disagreement exists in the medical community regarding whether the procedures prohibited by the Act are ever necessary to preserve a woman’s health.”

Ginsberg responded by arguing that “Casey’s [a previous case modifying Roe v. Wade] words ‘appropriate medical judgment’ must embody the judicial need to tolerate responsible differences of medical opinion.” Ginsberg argued that there existed significant dissent in the medical community, citing Carhart v. Ashcroft as saying, “Congress arbitrarily relied upon the opinions of doctors who claimed to have no…recent…experience” with abortion, while ignoring doctors who had “significant and
relevant experience.”

The text of the majority opinion justified regulation of intact D&E; because it “implicates additional ethical and moral concerns” — that is, “infanticide.” To this, Ginsberg responded that these issues were “untethered to any ground genuinely serving the Government’s interest in preserving life.” Perplexingly, one of the alternatives offered by the majority opinion is the euthanization of the fetus before the procedure. Ginsberg in her dissent also highlighted that abortion procedures other than D&E; were not proven less painful or dangerous.

Also of note, the Court ruled that future appeals of Gonzales v. Carhart would need to do more that offer counter-evidence against issues of fetal pain or mother’s safety. Instead, appeals would need to prove a discrete situation from the one addressed in the case. This significantly limits the role that future scientific discoveries can play in any court decisions related to intact D&E.;


Caroline Corbitt ’09 contributed to the reporting of this story.



View/Add Comments( 4 Comments )