Partial-birth abortion

Partial birth abortion (PBA) refers to most intact dilation and extraction (IDX) procedures where the fetus is alive at the time of the procedure — thus resulting in an abortion of the fetus. IDX procedures are also called dilation and extraction (D&X), intact dilation & evacuation (Intact D&E, or IDE), and Intrauterine Cranial Decompression (for the purposes of this article, IDX will be the term of choice). While the term "Partial Birth Abortion" largely refers to IDX procedures, in broader contexts the term is sometimes applied to dilation and evacuation (D&E) procedures. Though often performed during the same developmental stage wherein most D&X procedures are done, D&E is a separate and distinct procedure from IDX. A D&E procedure differs in that the fetus is killed during the process of dismemberment before leaving the womb, rather than being extracted intact.

Law in the United States

Federal Law

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:

Related Topics:
November 5 - 2003 - George W. Bush - Partial-Birth Abortion Ban Act

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

: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 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 included a large amount of supporting documentation -- including a statement by the American Medical Association (AMA) -- which the bill's authors and supporters argue demonstrate that there is no medical situation where this procedure is necessary to preserve the physical health of the mother. Supporters of the right to partial-birth abortion dispute these conclusions.

Related Topics:
Partial-Birth Abortion Ban Act - American Medical Association - AMA

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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. Opponents of the current bill say that its failure to include these protections make it incompatible with Justice Sandra Day O'Connor's concurring opinion in the 5-4 Stenberg v. Carhart decision (2000), in which the Supreme Court struck down a Nebraska law banning the procedure. O'Connor stated that any ban would have to include an exception for the health of the mother.

Related Topics:
Sandra Day O'Connor - Stenberg v. Carhart - 2000 - Supreme Court - Nebraska

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Broadly worded health exceptions in abortion legislation, of the form which are allowed by the Supreme Court under the Roe v. Wade standard, 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.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Federal judges in San Francisco, New York and Lincoln, Nebraska have ruled that the current ban is unconstitutional because, among other things, the Stenberg decision requires a stricter exemption for the health of the mother. 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 Nebraska decision has been upheld by the Eighth U.S. Circuit Court of Appeals. The San Francisco and New York decisions have been appealed.

Related Topics:
San Francisco - New York - Lincoln, Nebraska - June 1 - 2004 - Phyllis Harmon - Eighth U.S. Circuit Court of Appeals

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

The San Francisco decision states that the government is "permanently enjoined from enforcing the against plaintiffs Planned Parenthood" or any doctors working with Planned Parenthood in any way. This affects at least the 900 Planned Parenthood clinics located nationwide. The New York ruling applies to doctors affiliated with the National Abortion Federation, accounting for more than half of the doctors across the country that perform abortions. The Eighth Circuit ruling states that the law is facially unconstitutional, meaning it is unconstitutional in all circumstances, not just those related to the doctors directly involved in the suit. The law has not been successfully enforced anywhere.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

State Law

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 http://www.guttmacher.org/statecenter/spibs/spib_RPA.pdf.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

In 1995, Ohio enacted a law which referred to the procedure as dilation and extraction. In 1997, the United States Court of Appeals for the Sixth Circuit found the law unconstitutional on the grounds that it placed a substantial and unconstitutional obstacle in the path of women seeking previability abortions in the second trimester.

Related Topics:
Ohio - Previability - Second trimester

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Between 1995-2000, 29 states had passed Partial-Birth Abortion bans, all similar to the proposed federal bans and all lacking an exemption for the health of the mother. Many of these state laws faced legal challenges, with Nebraska's the first to reach decision in Stenberg v. Carhart. The Federal District Court held Nebraska's statute unconstitutional on two counts. One being the bill's language was too broad, potentially rendering a range of abortion procedures illegal, and thus, creating an undue burden on a woman's ability to choose. The other count was the bill failed to provide a necessary exception for the health of the mother. The decision was appealed to and affirmed by both the Eighth Circuit and the Supreme Court on June 2000, thus resolving the legal challenges to similar state bans nationwide.

Related Topics:
June - 2000

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Since the Stenberg v Carhart decision, Virginia, Michigan, and Utah have introduced laws that remain virtually identical to the unconstitional Nebraska law. The Virginia and Michigan laws were similarly struck down due broadness and the failure to provide a health exemption, Utah's law remains pending trial, though is uneforceable due to a court-issued preliminary injunction.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

In 2000 Ohio introduced another partial-birth abortion ban. The law differed from previous attempts at the ban in that it specifically excluded D&E procedures, while also providing a narrow health exception. This law was upheld on appeal to the Sixth Circuit in 2003 on the grounds that "it permitted the partial birth procedure when necessary to prevent significant health risks."

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

2005 Ohio House Bill No. 228, introduced in the Ohio House of Representatives, would make significant changes to state law regarding abortion. It would prohibit all abortions, but exempt from punishment the unintentional termination of a pregnancy resulting from medical treatment to a pregnant woman to preserve her life.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~