Legislating Reproductive Rights: The Partial-Birth Abortion Ban Act of 2003

Legislating Reproductive Rights: The Partial-Birth Abortion Ban Act of 2003

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Legislating Reproductive Rights: The Partial-Birth Abortion Ban Act of 2003


Abstract

While no federal legislation currently exists limiting access to abortions in general, in 2003, the Partial-Birth Abortion Ban Act became the first piece of federal legislation to regulate a particular abortion method. This specific procedure, known in the medical community as intact dilation and extraction, is a procedure used to terminate late-term pregnancies and is sometimes the safest method of doing so. Since the ban’s enactment, it has been challenged and defeated in federal court three times due to its vague language which can be construed to encroach upon the fundamental right to abortion. Furthermore, the ban has been found to be an unconstitutional violation of established case law pertaining to specific abortion procedures due to its vague language and lack of a health exception to protect the woman’s well-being. This paper also presents research suggesting that the real intent of the ban is to erode the basic constitutional right to choose and that judgments against the ban should be upheld.



Introduction

The Partial-Birth Abortion Ban Act of 2003 claims to limit a specific abortion procedure known as intact dilation and extraction (D&X), which is sometimes the safest method for aborting late-term pregnancies. Many factors contribute to the need for late-term abortions and the consequences of denying abortion can be detrimental to a woman’s well-being. Restricting a specific procedure would limit safe options available to women and their doctors. Although the right to obtain an early abortion has been established as a fundamental liberty, this Act uses vague language that could extend to other forms of abortion performed earlier in a pregnancy and fails to include an exception to preserve the woman’s health.

This paper will integrate previous decisions regarding abortion with an accurate description of the dilation and extraction procedure in order to demonstrate how the Act’s lack of clarity may result in its application to different procedures. As a result, it is a designed attempt to erode the rights of women. Women deserve the right to choose what happens to their bodies, especially when almost half of all unplanned pregnancies, about 1.31 million per year, are terminated by abortion (“Overview”). To attempt to ban a specific procedure using vague language may incidentally extend to constitutionally protected forms of abortion, consequentially impinging on our constitutional rights, disregarding pertinent case law and jeopardizing women’s well-being.

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The Need for Late-Term Abortion

Various diverse factors contribute to why women need access to late-term abortions. Medical complications may cause a woman to seek an abortion after the first trimester, including discovery of fetal abnormalities, such as severe genetic disorders or conditions in which the woman’s health is already, or would be, in danger if she were to continue her pregnancy. Such conditions and abnormalities include fetal heart failure, serious renal disease, infection, malignant hypertension and out-of-control diabetes. Severe depression and suicidal tendencies may also develop during a woman’s pregnancy. Both fetal complications and a woman’s mental health symptoms may not arise or may go unnoticed until after viability, or may become worse as the pregnancy continues (www.plannedparenthood.org 2005). Additionally, abortion after the first trimester is considered as safe as, if not safer than, attempting to carry even a healthy pregnancy to full term[1]. While the risk of death associated with medical or surgical termination of pregnancy increases with the length of gestation[2], the possibility of death related to childbirth is 11 times that of abortion (“First Trimester”, “Induced Abortion”). Since many symptoms are not detected until the later weeks of gestation, and abortion has a lower fatality rate than carrying a pregnancy to full term, a late-term option for ending pregnancy is important in preserving the health or saving the life of the woman.

Societal, economical and psychological pressures may also postpone abortion past the first trimester. Lack of financial and/or emotional support from the male partner, psychological denial of pregnancy caused by rape or incest, lack of pregnancy symptoms, or the absence of partner due to estrangement or death can contribute to delay in seeking abortion (“First Trimester”).

Young women are particularly susceptible to psychological, medical, economical and political pressures that may delay their access to abortions. Adolescents are more likely than older women to obtain abortions later in pregnancy, representing 30 percent of all abortions performed after the first trimester. Nearly one in four abortions performed after thirteen weeks’ gestation are for women under age 15. Adolescent women in this age group are more likely than others to obtain abortion after 21 weeks’ gestation (“Induced Abortion”), the timeframe in which techniques dependent upon the length of pregnancy such as dilation and evacuation (D&E) or D&X would be the necessary procedural options. Fear of parents’ reaction, denial of pregnancy, and prolonged fantasies that having a child will result in a stable relationship are some common psychological concerns cited by adolescents to explain why abortion was delayed until after the first trimester. Also, irregular periods make it difficult for a young female, or her physician, to medically recognize pregnancy until other indicators, such as extreme weight gain, are identified. Furthermore, almost half of women seeking abortions after 15 weeks gestation (a high percentage being adolescents) cite trouble affording, finding, or obtaining abortion services as economical causes of delay (“First Trimester”).

Political pressures also dissuade young women from acquiring abortions. Currently, 32 states[3] have laws requiring a pregnant adolescent to obtain parental consent before she can access abortion. If the adolescent does not feel she can inform a parent of her necessity to acquire an abortion, she can attempt to receive a court-authorized bypass to receive the abortion without parental consent. If she chooses to attempt to terminate her pregnancy without notifying her parents, an adolescent’s age, psychological state, physical ability, and economical situation (such as financial dependency) may affect her access to transportation in order to request a bypass, therefore making the time required in obtaining the bypass a reason late-term abortion may be necessary (“First Trimester”). In addition to medical indications that may not be noticed until a pregnancy has progressed past the first trimester, the current economic and political state of our country contributes to women, especially adolescents, developing a need for late-term abortions.



Abortion Denied

When women are denied abortion during any length of pregnancy, many aspects of their lives can be adversely affected. A negative implication of unwanted childbearing includes women’s relationships with their children. Women denied abortion not only maintain lower quality relationships with the child who resulted from an unwanted birth, but sustain lower quality bonds with all of their children. According to one study, 34 percent of women who were denied abortions reported one to three years later that the child was a frequently resented burden. Such relationships result in socialization issues for children, hindering their overall development, self-esteem, personality development, education, occupational attainment, mental health and marital relationships. Children of women denied abortion also have a higher frequency of under-performing at school, developing psychosomatic symptoms[4], and are more likely to need psychiatric treatment in their lifetime (“First Trimester”).

Mothers with unwanted births have a greater incidence of mental health issues, such as depression, than mothers who have not faced unwanted births. Consequences of adversely impacted mental health in mothers denied abortion include spending less leisure time with children and more frequently using physical punishment.

Additionally, when women are denied legal abortion, many seek illegal alternatives to terminate their pregnancy. Before abortion was legal, 1.2 million illegal abortions were estimated to be performed every year. Of those abortions, about 5,000 were thought to have ended in the woman’s death annually (“Abortion’s”). A 1981 study found that more than half of the women who chose to end a pregnancy would have participated in an illegal abortion if it were the only alternative to continuing the pregnancy (“First Trimester”).

Whether a family suffers due to the lower quality treatment of children by a mother prohibited from ending her pregnancy, or because a woman was injured or killed by a botched illegal abortion, denied abortions create terrible implications not only for individual women, but for families. No single abortion procedure, then, should be limited when it affects the health and lives of women.



The Procedure

Anti-choice activists have coined the term “partial-birth abortion” in recent years as a dysphemism for a medical procedure known as intact dilation and extraction (D&X). The catalyst for the debate over D&X appears to have been a 1992 presentation by Dr. Marvin Haskell before the pro-choice National Abortion Federation (NAF) (320 F Supp 2d at 962). He created the term “D&X” to distinguish it as a variant of other forms of late-term abortions. Despite the procedure’s exposure to the public in 1992, other physicians have testified that they have “practiced some version of intact extraction since the 1970s” (320 F. Supp. 2d at 962).

Legislation first passed Congress in 1996[5] and 1997 attempting to ban “partial-birth” abortions but was vetoed by President Clinton. Another bill passed through the House of Representatives in 2002, but never reached the floor of the then-Democratic Senate before the session ended (Gordon 501). Finally, after the midterm elections of 2002 yielded a Republican-dominated Congress, the PBABA sailed through both houses and was signed by President Bush (Gordon). On November 5, 2003, the Partial-Birth Abortion Ban Act of 2003 (PBABA) became the first ever piece of regulation that prohibits a specific abortion procedure to be enacted.

The purported intent of the Partial-Birth Abortion Ban Act of 2003 (PBABA) is to limit D&X procedure specifically. In their testimony to the United States District Court for the District of Nebraska, a panel of doctor-members of the American College of Obstetricians and Gynecologists described intact D&X as one method for completing late second trimester abortions (between 16 and 26 weeks of pregnancy), but can also be used in the third trimester (331 F. Supp. 2d at 827, 844). Approximately 2200 to 5000 D&X procedures are performed annually, only 0.2 percent of all legally performed abortions. This is a relatively small number compared to the 140,000 Dilation and Extraction (D&E) procedures, one alternative to D&X, performed within the United States (Physician Law Weekly 11).

The following elements of the D&X procedure are components of an established obstetric technique as defined by the American College of Obstetricians and Gynecologists. If these four elements of the procedure are not all performed, or not all performed in proper sequence, the procedure may not be called an intact D&X.

1. Deliberate dilation of the cervix, usually over a sequence of days.

2. Instrumental conversion of the fetus to a footling breech

3. Breech extraction of the body except the head

4. Partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus (331 F. Supp. 2d at 844).

To distinguish an intact D&X from other late-term abortion procedures, the specific steps of the process must be understood. Martin Haskell, M.D.’s professional paper, submitted to the National Abortion Federation Risk Management Seminar in 1992, describes the specific details of an intact D&X for a late second trimester abortion. The following description of the procedure is adapted from Haskell’s paper (331 F. Supp. 2d at 825).

On the first day of the procedure, the duration of gestation and measurements of the woman’s pregnancy are assessed using an ultrasound. Anesthesia is then used to numb the woman’s cervix so it may be dilated 9-11 mm. Up to seven large dilators, used to absorb natural fluid and dilate the cervix slowly and gently, are placed in the cervix and left in overnight. During this dilation process, the woman may return home. On the second day the dilators are removed from the woman’s cervix so that the cervix may be cleaned and anesthetized. Anywhere from 15 to 25 dilators are inserted into the cervical canal to continue the dilation process, and the woman again returns home overnight (331 F. Supp. 2d at 825).

The actual operation occurs on the third day of the procedure after the dilators are removed from the cervix. A surgical assistant administers an intramuscular anesthetic as the cervix is scrubbed. A tenaculum (a metal clamp-like instrument used to grasp the cervix) then holds the cervix securely in place. An ultrasound of the abdomen scans the fetus to pinpoint the lower extremities (331 F. Supp. 2d at 825). The surgeon then introduces a large grasping forceps through the vaginal and cervical canals into the uterus in order to grasp the lower extremities of the fetus. To ensure precision, this is done while watching the instruments on the sonogram screen. The lower extremity of the fetus is pulled into the vagina so that the skull lodges at the internal opening of the cervix into the uterus, known as the os, with the spine facing up. The surgeon then hooks his/her left index and ring fingers (palm down) around the shoulders of the fetus. While applying traction to the shoulders and lower extremities, the surgeon slides his/her middle finger along the spine towards the skull. With this middle finger the surgeon lifts and pushes the frontal cervical lip out of the way. During this time, after safely elevating the cervix, the surgeon uses a pair of curved medical scissors to puncture the base of the fetus’ skull. After ensuring the opening in the skull is large enough, the scissors are removed and a suction catheter is inserted into the skull to evacuate the contents. While the catheter is still in place, pressure is applied to the fetus to remove it completely from the woman. With forceps and suction curettage (an instrument used to simultaneously scrape and vacuum the remaining contents out of the uterus), the placenta is removed from the uterine wall signaling the end of the procedure. Post-procedure, the woman is observed for a minimum of two hours, while blood loss and vital signs are checked (331 F. Supp. 2d at 826).



D&E vs. D&X

A Dilation and Extraction (D&E) procedure is considered the usual method for terminating late pregnancy and is similar to that of a D&X. The two procedures differ, however, in that during a D&E, only suction and grasping instruments are used to remove the pregnancy that is completely inside the uterus instead of emptying the fetus’ cranial contents while the body of this fetus is in the vaginal canal, as done in a D&X. Most D&E abortions are also “blind,” meaning ultrasound is not used to locate the pregnancy and instruments being used. Dilation and Evacuation methods cause traumatic stretching of the cervix since all instruments must be introduced through the cervix into the uterus. Such trauma to the cervix increases a woman’s chance for infertility in the future while intact D&X allows a very passive dilation and gentle manipulation of the cervix in order to preserve the woman’s fertility (plannedparenthood.org 2005, 331 F. Supp. 2d at 832). Health implications such as these may be used to argue that, in some cases, the Dilation and Extraction method can protect a woman’s health better than the Dilation and Evacuation technique.



Safety of D&X

Despite the claims of the PBABA’s proponents, D&X is sometimes safer than other late-term procedures. In many cases, it may be the only feasible way to safely remove the fetus from the woman’s body.

For instance, in Planned Parenthood v. Ashcroft, Dr. Haskell claimed an average of two complications per 1000 D&E procedures that he had performed, but no complications per 1000 D&X procedures performed, citing “an enormous advantage to the woman” in utilizing D&X procedures over D&E (331 F. Supp. 2d at 830). Aside from the rate of complication when comparing the procedures, Dr. Haskell also cited minimized trauma to the uterus, minimized blood loss, and shortened surgical time (331 F. Supp. 2d at 830) as benefits of the D&X procedure. In that same case, Dr. Campbell, previously a Medical Director of Planned Parenthood of Metropolitan Washington, claimed that D&X “is a safe procedure…safer than induction, far safer than historotomy,” and that decreased dilation of the cervix and decreased cervical lacerations are among the benefits of this specific technique (331 F. Supp. 2d at 831). Additionally, the panel of doctor-members of the ACOG gathered to testify in this decision stated, “an intact D&X…may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman” (331 F. Supp. 2d at 844). The D&X method for ending a late term pregnancy may be necessary to preserve a woman’s health in some instances.



The Constitutional Right to Abortion
The right to choose an abortion stems from a more fundamental liberty of bodily privacy. The Supreme Court has repeatedly held that any regulations, including but not limited to abortion statutes, that invade the bodily privacy of an individual must be in pursuit of a legitimate government interest. After defining this sense of liberty, the court placed the right to choose an abortion within the sphere of bodily privacy. These rights have been enumerated in Supreme Court case law that until now have only concerned state statutes. Because the issue of abortion concerns a fundamental constitutional right, it can be reasonably assumed that these rights apply to federal law as well. Consequently, if the PBABA impinges upon the fundamental right to bodily privacy, it may be found unconstitutional.

The more basic right to bodily privacy originates in the 1961 Connecticut v. Griswold[6] decision. In that case, the Supreme Court established bodily integrity as a fundamental Constitutional right even though it is not listed explicitly in the Bill of Rights. Instead, they found this liberty embedded in the broad “scope of the guarantees in the Bill of Rights,” (Kushnir 1124-5). They believed that the Bill of Rights is a list of numerous fundamental liberties but that it is not a complete enumeration of our rights[7]; any rights not listed in the Constitution must be left to the people or the states.[8] They wrote that the14th Amendment further “prohibit[s] the federal and state governments, respectively, from depriving any person of ‘life, liberty, or property, without due process of law,” (Kushnir 1124-6). This part of the 14th Amendment, known as the Due Process Clause, formed much of the basis for the Court’s assertion that the fundamental right to bodily privacy could not be intruded upon unless the government could demonstrate a great degree of interest in doing so (Kushnir 1126).

The landmark Supreme Court decision Roe v. Wade (1972) expanded this right of bodily privacy to include abortions. At issue in that case was a Texas abortion statute dating back to 1854 that prohibited doctors from administering abortions except to save the life of the mother (Kushnir 1129). Because Griswold had established bodily privacy as a fundamental liberty under the Due Process Clause, the court was faced with a difficult question. It had to decide whether or not the state’s interest in protecting the potential life of the fetus could override the mother’s desire to obtain an abortion under the rights afforded to her by the 14th Amendment’s Due Process Clause. Unfortunately, the Constitution is mostly silent on whether or not a fetus is afforded constitutional rights, leaving the Court without any clear language to suggest that a fetus has explicit rights that override those of the mother (Kushnir 1131). [9] The Constitution does, however, explicitly afford rights to “people” who have already been born, leaving the Court to discern if fetuses are indeed people. The Court declined to answer this question. Instead, Justice Blackmun wrote for the majority in Roe v. Wade, “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate on the answer” (410 U.S. at 159).

In spite of its unwillingness to rule on when personhood begins, the Court found a way to balance the intersection of state’s right to protect the developing potential life of the fetus with the bodily rights of the mother by devising a trimester system. This classification allowed the states more latitude to regulate abortion as the pregnancy developed (Kushnir 1132-3).[10] Most importantly, this meant that any regulation on abortion “must be justified by a compelling state interest,” (Kushnir 1130). That is, states do not have an overriding interest in protecting a fetus unless it could conceivably survive outside the womb (“Considerations”). This restriction naturally applies to federal legislation as well. Therefore, just because the authors of the PBABA find the D&X to be repugnant does not allow them to write legislation that invades this inalienable right.

After 20 years of litigation over state legislation, it became apparent that the trimester system devised to balance state interests with personal liberties in Roe was problematic due to its vagueness. In Planned Parenthood v. Casey (1992)[11], the Court re-worked the trimester system to do away with legislative confusion[12]. It instead decided that the point of intersection between the interests of the state and of the pregnant woman would be redefined as “viability,[13]” the point where a fetus could reasonably survive outside of the womb with or without medical support. Before the fetus becomes viable, the state has little latitude in placing regulations on access to abortions. The Court believed that states could not create an “undue burden,” defined as a “substantial obstacle,” on a woman seeking an abortion (Kushnir 1136).[14] If the PBABA, therefore, places an undue burden on a woman attempting to obtain a post-viability abortion, it may be unconstitutional.

After viability, the states may proscribe abortion procedures to a greater degree including completely banning abortion after viability. However, both the Roe and Casey courts required health exceptions for cases “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother” (Kushnir 1172). Furthermore, states may not restrict abortion procedures in a way that forces a woman to choose a less safe method in a context where she has the right to terminate her pregnancy. This demonstrates the courts’ tendency to afford the mother greater leeway in situations where a post-viability abortion is necessary to prevent a health problem (Kushnir 1172).

Despite re-working Roe’s trimester system, the Supreme Court in Casey still upheld the concept of basic bodily rights of previous cases such as Griswold. The willingness of the Court to uphold the Constitutional right to bodily privacy suggests that the PBABA should have difficulty in overcoming this previously established liberty. This habit of upholding prior judgments of principle is an example of stare decisis, an important part of western law. Stare decisis is the practice of a court to uphold its earlier decisions in order to stay consistent through the years (Wikipedia). So, while the make-up of the Federal and Supreme Courts’ members may shift in the future, they should be bound, under the concept of stare decisis to uphold the bodily privacies of Roe. Especially in this case, perpetuation of precedents is unusually important. The majority found the liberty afforded by the 14th Amendment and the right to privacy invoked in Roe to be a proper basis for protecting abortion (Kushnir 1137). As the Casey majority wrote, “Where the Court acts to resolve the sort of unique, intensely divisive controversy reflected in Roe, its decision has a dimension not present in normal cases, and is entitled rare precedential force to counter the inevitable efforts to overturn and to thwart its implementation” (505 U.S. at 836).



Requirements of Legislation Banning A Particular Abortion Procedure

In 2000, the Supreme Court handed down Stenberg v. Carhart[15] in which a Nebraska ban on “partial-birth abortions” was challenged by an abortion provider. The ban prohibited “an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery” (Neb. Rev. Stat. Ann. § 28-326(9)). Due to the similarity between the Nebraska statute in this case and the PBABA, the requirements of this opinion will most directly decide the constitutionality of the ban. To justify its state prohibition, the state of Nebraska pointed out what it believed was the frightening nature of the D&X procedure and attempted to prove that it could never be necessary to preserve the health of the mother. The ban was narrowly struck down in a 5-4 decision written by Justice Breyer with Justices Stevens, O’Connor, Souter and Ginsburg joining (530 U.S. 914).

First, due to Casey’s mandate that states may not regulate abortion in a way that prevents doctors from performing the safest procedure in a given situation, Nebraska had to prove that D&X could never be a necessary procedure. Weighing the medical evidence, the court concluded that there was no medical consensus on whether the procedure is never necessary. In Justice Breyer’s opinion for the majority in Carhart, he wrote that the law required a health exception because of “a division of opinion among some medical experts over whether D&X is generally safer, and an absence of controlled medical studies that would help answer these medical questions”[16] (530 U.S. at 936-7). According to Breyer, because no consensus exists on the necessity of D&X, it cannot be banned outright.

Second, since the Nebraska law included language prohibiting the extraction and “killing” of a “living unborn” fetus, the vague language created a possibility that this ban could also apply to D&E or other forms of abortion (Gordon 503). Because D&E is a procedure that is sometimes performed pre-viability, a categorical ban on that method might prevent a woman from obtaining a pre-viability abortion. Therefore, the ban failed to meet Casey’s requirement that any regulation procedures not place an “undue burden” on a woman seeking a pre-viability abortion[17] (Gordon 503).

Justice O’Connor, concurring with the majority in her opinion, took these two main objections and articulated her requirements for future abortion procedure prohibition. She wrote, “A ban on partial-birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view” (530 U.S. at 951). This means, in general, abortion legislation banning a particular procedure must both be written in medical terms to specifically ban a single procedure as well as contain a health exception in the interests of preserving the well-being of the woman. As Justice O’Connor is very often the swing vote in controversial cases, legislation must almost certainly meet these guidelines if it hopes to withstand judicial review in the Supreme Court (Gordon 504).



The Legislation
The PBABA purports to proscribe anyone from performing “partial-birth” abortion procedures, defining the procedure as:

…deliberately and intentionally vaginally deliver[ing] 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. (§ 1531(b)(1)(A))[18]

The act provides an exception where “it is necessary to save the life of a mother” (§ 1531(a)).

When writing the PBABA, the bill’s authors knew they had to do something to make the ban conform to the guidelines set forth by Justice O’Connor in Carhart. Because no ban can force a woman to choose a less safe procedure, the proponents of this legislation needed to either include a health exception for the woman or demonstrate that a D&X is never necessary to preserve the health of the mother (Gordon 505). The authors chose the latter option and included a section of congressional findings to support the notion that a medical consensus existed claiming D&X is never the safest procedure, despite the fact that the Carhart court had ruled that there is no such consensus (Gordon 505).

Aside from the issue of whether or not Congress may act as a fact-finding body for the judiciary using its own evidence, the quality of the congressional testimony that yielded the Findings section of the PBABA is questionable. The 104th through the 108th Congresses held numerous hearings on the necessity of D&X but few of these hearings seemed to be balanced between both sides of the debate. Over the course of the hearings only eight physicians testified, six of whom supported the ban[19]. None of the six physicians supporting the ban had ever performed such a procedure and “several did not perform abortion services at all; […] one was not even an obgyn” (320 F. Supp. 2d at 1019).

The Findings section of the PBABA was presented as proof that D&X is never necessary to save the life of the mother. These declarations, however, were based on dubious and biased congressional fact-finding, written by political, not medical, authors. Therefore, the ban’s language could not withstand the requirements of specificity outlined in Carhart.



Court Challenges

Immediately after its enactment, opponents of the PBABA won injunctions against the ban’s enforcement in three different federal district courts. As a result of this widespread litigation, the ban became largely ineffective (McAree 14). In similar opinions, each district judge based their judgment on the requirements of the Carhart majority.

The challenges against the PBABA originated in San Francisco, New York and Nebraska. The Planned Parenthood Federation v. Ashcroft[20] decision, from San Francisco, was decided on June 1, 2004 by Judge Phyllis Hamilton. This decision struck down the ban based on the most numerous reasons and was therefore cited as the “most sweeping” of the three opinions (McAree 14). The New York case, National Abortion Federation v. Ashcroft,[21] presented before Judge Richard Casey, was brought by the nation’s largest abortion provider (ACLU 8/26/04). Decided by Judge Richard Kopf, the Nebraska case of Carhart v. Ashcroft[22], involved the same Dr. Carhart from Carhart v. Stenberg, who was again represented by the Center for Reproductive Rights (331 F. Supp. 2d 805).

All three opinions are broad evaluations of the validity of the evidence available to Congress in its Findings section of the PBABA as well as discussions of the ban’s resemblance to the Nebraska statute rejected in Carhart. Ultimately, all three judges struck down the ban, citing the fact that the law’s language placed an undue burden on doctors who may potentially provide a pre-viability D&E abortion and that the entire ban is written in excessively vague language. Moreover, Judges Kopf and Hamilton also said that the ban did not provide a sufficient health exception for the woman seeking an abortion (Dailard).

After evaluation of the medical evidence, the exception contained within the PBABA allowing procedures only to save the woman’s life was found to be insufficient. In Carhart, Justice O’Connor found that an exception to protect the mother’s health, not simply an exception to save her life, was necessary (530 U.S. at 950-1). In order to determine the necessity of a health exception in this case, all three judges came to their own conclusions as to whether or not a medical consensus existed that D&X could never be a necessary procedure. The judges considered testimony and evidence presented directly at trial as well as the evidence offered to Congress upon which Findings section of the PBABA was based. In their judgments, the ban could expose women to a less safe method of abortion (Dailard). Wrote Judge Kopf:

The overwhelming weight of the trial evidence proves that the banned procedure is safe and medically necessary in order to preserve the health of women under certain circumstances. In the absence of an exception for the health of a woman, banning the procedure constitutes a significant health hazard to women. (ACLU 9/8/2004)

Judge Casey also found a health exception necessary despite calling D&X “gruesome, brutal, barbaric and uncivilized,” (Physician Law). All three judges agreed that the prevailing evidence left room for the reasonable assumption that D&X is sometimes necessary.

Next, the three judges analyzed whether or not the language of the PBABA could be construed to apply to other procedures besides the D&X that are performed pre-viability. If so, then the ban may impinge on a woman’s constitutional right to obtain a pre-viability abortion. Judges Kopf and Hamilton found that the language of the ban could unnecessarily extend to other procedures including the D&E. Wrote Hamilton, “Like the Nebraska statute in Stenberg, the Act bans abortions performed at any time during a pregnancy, regardless of gestational age or fetal viability”[23] (320 F. Supp. 2d at 971), therefore potentially hindering physicians from performing a constitutionally-protected procedure for women seeking pre-viability abortions.

In a related matter, Kopf and Hamilton found that the PBABA was not clear enough in banning a specific procedure, another requirement enumerated in Carhart by Justice O’Connor (530 U.S. at 951). Hamilton found terms such as “overt act,” “deliberately and intentionally,” and “living fetus” to be too ambiguous. To her, inclusion of such phrases as “deliberately and intentionally” do nothing to remedy the ban’s vagueness because doctors willingly perform all types of abortion, not just D&X (320 F. Supp. 2d 977-8). She further wrote, “The term ‘partial-birth’ has little if any medical significance in and of itself” (320 F. Supp. 2d at 977-8). This revealed her opinion that the PBABA was actually designed to invade the right to an abortion rather than legislate a particular procedure.

In all three cases, the judges also rejected the notion that Congress could include a Findings section in the bill to render the court’s interpretation of medical facts void. That is, Congress cannot simply declare D&X procedures to never be necessary. Judge Casey and Judge Hamilton’s both partly based their judgment on Lamprecht v. FCC (1992)[24] and cited Justice Thomas’ opinion from the case directly:

We know of no support… for the proposition that if the constitutionality of a statute depends in part on the existence of certain facts, a court may not review a legislature’s judgment that the facts exist. If a legislature could make a statute constitutional simply by “finding” that black is white or freedom, slavery, judicial review would be an elaborate farce. (294 U.S. App. D.C. 164)

This was a rejection of Congress’ attempt to assert itself in an area where the court had already made an interpretation of the facts. Judge Casey went on to clarify in his opinion that because the Stenberg court rejected the Nebraska state legislature’s presentation of medical opinion as fact, it had “implicitly rejected deference to the institutional competency of legislatures, at least when abortion regulations are concerned” (03 Civ. 8695 at 81). Judge Casey’s broad mistrust for the ability of legislatures to determine questions of fact is an important road block in prohibiting a procedure in such a vague way. In short, Congress may not “legislate in the face of medical uncertainty” and do whatever it pleases (03 Civ. 8695 at 81). The PBABA was struck down in the knowledge that legislatures make poor judges of the medical issues regarding abortion.



Conclusion

Numerous factors contribute to the need for post-viability abortion. Often times, intact dilation and extraction is the safest method for obtaining such an abortion. When determining the constitutionality of the Partial-Birth Abortion Ban Act of 2003, we must analyze not only the legal aspects of the ban but also how restricting such a procedure impacts the lives of women and the choices they have available when seeking a late-term abortion.

The design of the PBABA was clearly intended to erode the rights of women to obtain abortions that may be necessary to protect their well being rather than as legislation designed to protect the abstract interests of potential life. Putting aside its vague language and the absence of a sufficient exception for the woman’s health, this ban would do little to prevent abortions and do much to endanger women’s safety.

The Constitution affords a woman and her physician the right to decide what procedure is safest for her in her specific situation. If the PBABA were to be upheld it would not only take away this liberty but may also prevent her from obtaining a safe method of terminating a pregnancy both before and after viability. It has been shown that restricting access to abortion can not only negatively impact women, but place strain on family life and the well-being of existing and future children.

The courts have correctly found legislatures to be poor judges of what is best for an individual’s health. This ban would allow Congress to make decisions about a woman’s right to bodily integrity even when her health is endangered. We cannot afford to live under a government that would place an abstract moral principle above the safety of its citizens. To do so would compromise the freedoms Americans have come to depend upon since the beginning of our nation.



Works Cited


The Alan Guttmacher Institute. Induced Abortion. 2004. 7 April 2005 .

The Alan Guttmacher Institute. Late-Term Abortions: Legal Considerations. 2004. 7 April 2005 .

Carhart v. Ashcroft. 331 F. Supp. 2d 805. 8 September 2004.

Dailard, Cynthia. “Courts Strike 'Partial-Birth' Abortion Ban; Decisions Presage Future Debates.” The Guttmacher Report. October 2003: 7.4. 7 April 2005 .

Gordon, Alex. “The Partial-Birth Abortion Ban Act of 2003.” Harvard Journal on Legislation. 41 Harv. J. on Legis. 501 (2004).

Griswold v. Connecticut. 381 U.S. 479. 7 June 1965.

“Griswold v. Connecticut.” Oyez. 1996. 7 April 2005.

Knishkowy, Barry and Hava Palti. “Symptom clusters among young adolescents.” Adolescence 30.118 (1995): 351-362.

Kushnir, Tamara. “It’s My Body, It’s My Choice: The Partial-Birth Abortion Ban Act of 2003.” Loyola University Chicago Law Journal. 35 Loy. U. Chi. L.J. 1117 (2004).

Lamprecht v. FCC. 294 U.S. App. D.C. 164. 19 February 1992

Life and Liberty For Women. Abortion’s Silenced Legacy. 7 April 2005

McAree, Dee. “Walking into the storm over abortion rights.” National Law Journal. 26.65 (2005): 14.

National Abortion Federation v. Ashcroft. 03 Civ. 8695. 26 August 2004.

“Nebraska judge finds Partial-Birth Abortion Ban Act unconstitutional.” Physician Law Weekly. 29 September 2004: 11.

Planned Parenthood Federation of America. Abortion After the First Trimester. August 2004. 7 April 2005


Planned Parenthood v. Ashcroft. 320 F. Supp. 2d 957. 1 June 2004.

Planned Parenthood of Central Missouri v. Danforth. 428 U.S. 52. 1 July 1976.

Planned Parenthood of Southeast Pennsylvania v. Casey. 505 U.S. 833. 29 June 1992.

Roe v. Wade. 410 U.S. 113. 22 January 1973.

“Stare Decisis.” Wikipedia. 29 March 2005. 7 April 2004 .

Stenberg v. Carhart. 530 U.S. 914. 28 June 2000.




[1] Less than one percent of women who obtain legal abortions experience a serious complication (“First Trimester”, “Induced Abortion”).

[2] Medical reports cite one death for every 500,000 abortions under 8 weeks gestation, one per 27,000 at 16-20 weeks gestation and one per 8000 at 21 weeks or more (“First Trimester”, “Induced Abortion”).

[3] The following states have laws requiring adolescents to obtain parental consent for abortions: AL, AR, AZ, DE, GA, IA, ID, IN, KS, KY, LA, MA, MD, MI, MN, MO, MS, NC, ND, NE, OH, PA, RI, SC, SD, TN, TX, UT, VA, WI, WV, and WY.

[4] Psychosomatic symptoms, common in adolescents, include abdominal, back, chest or limb pain, bad mood, dizziness or fainting, headache, sleep problems, and tiredness (Barry and Hava, 351).

[5] This bill, known as the Partial-Birth Abortion Ban Act of 1995, was introduced by Rep. Charles T. Canady (R-FL) and actually passed the House with a margin wide enough to override the presidential veto. It failed, however, to win a super-majority in the Senate (Kushnir). The second attempt in 1997 met the exact same fate.

[6] 381 U.S. 479. In this decision, the Supreme Court struck down a Connecticut statewide ban on contraceptive counseling for couples (Oyez).

[7] The 9th Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

[8] The 10th Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

[9] Numerous portions of the Constitution in Articles I and II (defining the electoral process, etc.) refer to “persons” implying that persons are individuals who have already been born. The first section of the 14th Amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside [emphasis added].”

[10] Wrote Tamara Kushnir, “The Court held that during the first trimester the State may not regulate abortion; during the second trimester, the State may regulate aspects of abortion that pertain to the preservation and protection of the woman’s health; and in the third trimester… the State may proscribe abortion generally,” (1131-2).

[11] 505 U.S. 879. In this case, the Supreme Court debated five provisions of a Pennsylvania statute. These included a four-hour waiting period, a requirement that minors have the consent of a parent or legal guardian, a requirement forcing married women to inform their spouses as well as two other provisions regarding reporting requirements for abortion clinics (Kushnir 1136).

[12] Wrote the majority in Casey, “Although Roe has engendered opposition, it has in no sense proven unworkable, representing as it does a simple limitation beyond which a state law is unenforceable” (505 U.S. at 835).

[13] In Planned Parenthood of Central Missouri v. Danforth (1976), the majority wrote, "The time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician," (“Legal Considerations”).

[14] Or, as Justice Stevens wrote in Casey, “Means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it” (505 U.S. at 877).

[15] 530 U.S. 914

[16] Breyer went on to add: “Medical treatments and procedures are often considered appropriate (or inappropriate) in light of estimated comparative health risks (and health benefits) in particular cases… Doctors often differ in their estimation of comparative health risks and appropriate treatment.”

[17] A short concurring opinion in Casey by Ginsburg also points out that other forms of abortion procedure can also be “susceptible to gruesome description,” and that the true spirit of this Nebraska law (as could be said for the PBABA as well) is to “chip away at the private choice shielded by Roe v. Wade.”

[18] Violators of the ban “shall be fined under this title or imprisoned not more than 2 years, or both” (PBABA § 1531 (a)).

[19] For example, during three hearings before the 104th Congress, the witnesses who testified in favor of the ban consisted of a gynecologist (who does not perform abortions), a neurosurgeon (who has no obstetrics training), a doctor who had never performed an intact D&E, a representative of the Catholic church and a neonatal nurse unqualified to deliver expert testimony on abortion procedures. Another doctor testified in general about the lack of medical necessity for the procedure. All the witnesses were questioned chiefly about policy and “did not explain matters in great scientific detail,” (320 F. Supp. 2d 957 at 1015-6).

[20] 320 F. Supp. 2d 957

[21] 03 Civ. 8695

[22] 331 F. Supp. 2d 805

[23] Among other specific conclusions, Hamilton found that a fetus could still have a detectable heartbeat and need to be killed by the physician in an “overt act” during a D&E or induction procedures regardless of whether or not the fetus was viable (320 F. Supp. 2d 957 (37-44))

[24] 294 U.S. App. D.C. 164. In this case, the D.C. Circuit court held that the FCC’s preference for female radio station owners violated Constitutional equal protection.
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