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Partial-birth abortion

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Partial-birth abortion (PBA) is a term sometimes used to refer to "Intact dilation and extraction" ("IDX" or "Intact D&X"). Although the term is controversial to some, "partial-birth abortion" is now the default term used by television and print media, sometimes with qualifiers. Likewise the abortion procedure it describes is controversial.

Often the debate over PBA is about the term as well as the procedure. Those who support the term's use say it identifies a specific type of abortion in a phrasing that better represents the procedure. These individuals are often supporters of legislation that would limit or completely ban the IDX procedure. Others — usually those that oppose the banning of the procedure — point out that the term is a political invention, only used to frame the argument in a way favorable to those in opposition to IDX.

Table of contents

Etymology

The procedure now referred to as IDX was first described by Cincinnati physician W. Martin Haskell, MD, in a monograph that was distributed by the National Abortion Federation in September, 1992 [1]. In this monograph, Dr. Haskell describes the procedure only as "Dilation and Extraction".

The term "partial-birth abortion" did not appear until several years later. According to a Lexis Nexus search, its first use was on June 4, 1995 [2] in media coverage of pro-life events in support of legislation. It replaced the earlier, more graphic term "brain suction abortion," which was used in an Ohio law that banned the procedure but was blocked by the judiciary. The term "brain suction abortion" was similar to "partial-birth abortion", in that it is a political term created by opponents to the procedure — specifically, pro-life activist Janet Folger. [3].

In December 2003, the Sixth U.S. Circuit Court of Appeals upheld Ohio's Partial-Birth Abortion Ban[4]. Notable is an exception that allows the procedure when necessary "to preserve the life or health of the mother as a result of the mother's life or health being endangered by a serious risk." The Court held that, "a valid health exception need only permit the partial birth procedure when necessary to prevent significant, as opposed to negligible, health risks." Martin Haskell, who had sued to block the law, declined to appeal the ruling.[5].

Ohio's current law[6] calls the procedure "partial birth feticide" though there are no other examples of this exact terminology in law or medicine. Ohio legislators' use of this term appears to constitutute a neologism.

Controversy

The IDX procedure is highly controversial in several parts of the world. The inventor of the procedure called it "a quick, surgical outpatient method"[7] for late second-trimester and early third-trimester abortions. Pro-life critics of the procedure call it "infanticide" or "murder," and the Partial-Birth Abortion Ban Act of 2003 describes it as "a gruesome and inhumane procedure that is never medically necessary" [8].

Many pro-choice and pro-life advocates see the partial-birth abortion issue as a central battleground in the wider abortion debate.

A major part of the legal battle over banning partial-birth abortion relates to health exceptions, which would permit the procedure in special circumstances. The 1973 Supreme Court decision Roe v. Wade, which declared many state-level abortion restrictions unconsitutional, did allow states to impose some restrictions on second- and third-trimester abortions. The companion ruling, Doe v. Bolton, required that states' restrictions on abortions must provide an exception for the health of the mother, and defined health to include mental as well as physical health, though in his concurring opinion Chief Justice Burger wrote, "plainly, the Court today rejects any claim that the Constitution requires abortions on demand."

Supporters of late-term abortion procedures argue that they prevent the pregnant woman from having to undergo childbirth or abdominal and uterine incisions of a caesarian section (c-section) when the child would not survive. However, critics claim (and the inventor of the procedure has confirmed[9]) that most partial-birth abortions are elective. Critics also claim that partial-birth abortion subjects mothers to unnecessary risks[10] for the convenience of the physician[11]. Partial-birth abortion is particularly a target of pro-life advocates because they believe the procedure most clearly illustrates why abortions, and especially late-term abortions, are immoral.

Opponents of the PBA Ban have said that claim is "inherently contradictory in view of the fact that none of the proposed bans have contained exceptions for cases in which the fetus is dying or already dead" and they have also argued that the definition of such a ban is so vague that the law would have a chilling effect on physicians performing any abortion or other gynecological procedures such as D&C (dilation and curettage), used for various conditions of the uterus.

Some opponents of the PBA Ban in the United States say that the proponents' argument is based on religious objections to the procedure and that to create legislation based on these religion objections violates the First Amendment. Those in favor of the ban would reply that under such logic the laws against murder would also be an unconstitutional enactment of one of the biblical Ten Commandments into law.

Surgical procedure

See Intact dilation and extraction for a complete description of the procedure.

Law in the United States

George W. Bush signing the Partial-Birth Abortion Ban Act of 2003, surrounded by senators and members of congress.

On November 5, 2003, President George W. Bush signed the Partial-Birth Abortion Ban Act (HR 760, S 3), which defined partial-birth abortions 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

Opponents of the ban claim that this definition could include even the first-trimester vacuum aspiration of embryos through the vaginal canal. Supporters of the PBA Ban deny this, and point to the "Findings" section, which describes the procedure as "an abortion in which a physician delivers an unborn child's body until only the head remains inside the womb, punctures the back of the child's skull with a sharp instrument, and sucks the child's brains out before completing delivery of the dead infant."

The federal PBA Ban contains an exemption for protecting the health of the mother, but opponents argue that it is insufficiently broad. During his time in office, President Bill Clinton twice vetoed legislation that he believed did not include sufficient protections for the health of the mother. The bill states that it "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." Opponents say this wording is counter to Justice Sandra Day O'Connor's concurring opinion in the 5–4 Stenberg v. Carhart decision, in which the Supreme Court struck down the Nebraska law. O'Connor stated that any ban would have to include an exception for the health of the mother.

As a result, federal judges in San Francisco, New York and Lincoln, Nebraska have blocked the implementation of the law while court cases were being argued. On June 1, 2004, Judge Phyllis Harmon struck down the law in the San Francisco case, stating that "The act poses an undue burden on a woman's right to choose an abortion."

The New York and Nebraska cases are ongoing.

The Partial-Birth Abortion Ban Act (PBA Ban), included an exception for the life of the mother, but not for non-life-threatening health issues. The authors believed that they adequately addressed this in the findings section of the legislation because they have included a large amount of supporting documentation — including a statement by the American Medical Association — which they argue demonstrates that there is no medical situation under which this procedure could be used to preserve the physical health of the mother. Broadly worded health exceptions in abortion legislation have previously been interpreted by many American courts to include psychological health, which opponents of the procedure contend is so vague that it renders any attempt at prohibiting abortions toothless.

While some state laws allow late-term abortions in only the most dire of cases under state laws — for example, where the fetus is severely malformed and dying — many of these restrictions are claimed by abortion supporters to be constitutionally invalid. As of February, 2005, 17 states had bans on post-viability abortions that abortion supporters say do not meet Supreme Court requirements: three states allow late-term abortions only when the mother's life is in danger, four other states allow late-term abortions only when the mothers physical (but not mental) health is in jeopardy, and 13 states ban all abortions performed after a certain point in pregnancy. Nineteen (plus the District of Columbia) allow them when necessary to preserve the woman's life, physical health, or mental health.

At least three states (Delaware, Minnesota, and Utah) have no current policy regarding post-viability abortions because the laws in those states are blocked by court order. Most or all of the remaining 47 states, plus the District of Columbia, impose some regulation on late-term abortion [12].

See also

External links

Legislation, Testimony, and Court Decisions

Commentary

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