Late Term Confusion

Posted by Barbara O'Brien at 12:47 AM on April 20, 2007.

Time and time again I am struck by how little people know about abortion law and practice in the U.S. This includes most people with firm opinions on abortion. For example, earlier this week I noticed one right-wing blog after another celebrating the end of "late-term abortions," by which they obviously mean abortion of a viable fetus, presumably for frivolous reasons. Example:

Most Americans, even those who are pro-choice, understand how sick this procedure was. If a late term pregnancy was so harmful to the mother's health, then the mother should just deliver the baby and give the baby a chance to survive. But this procedure wasn't really about saving the life of the mother. It was about killing an unwanted baby. ...

... Some lefties are angry at Justice Kennedy, claiming that he's abandoned them, and now they're lamenting the fact that killing a late term unborn baby by sucking its brains out is no longer legal. Of course, they disguise partial birth abortion as "women's rights," which is a bunch of hooey.

Here's a feminist whose first comment was "We're f***ed." Sure, lady, if you mean that you can't go to an abortionist when you're 6+ months pregnant and have your unborn baby almost completely delivered except for his head and have his brains sucked out while he's still alive because you just don't feel like being pregnant any longer, then yes, I suppose you're f***ed. Be sure to check out the comments on this feminist's blog as well. These wacko women are beside themselves about the fact that they can't kill their babies in this manner any longer.

But elective late-term abortions were already illegal in most states. Roe v. Wade allows states to ban abortions once the fetus has reached the gestation age at which it is potentially viable, about 23 weeks[*], except when the life and health of the mother are at risk. There are laws on the books in most states to that effect. Some of the states that don't have such laws in effect are those which tried to enact a law without the "life and health" exception, and the law got tangled up in court challenges.

[* Recently an infant survived that was believed to have been born at 21 weeks gestation. This made international news because she was the first baby ever known to have survived after a gestation period of fewer than 23 weeks.]

A PDF document at the Alan Guttmacher web site provides an overview of abortion law in the states as of April 1, 2007. It's a three-page document, and pages 1 and 2 are a table that provides basic information on the abortion laws of each state. If you doubt what I say about elective late-term abortion already being illegal, just take a look.

The "Partial Birth" Abortion Act of 2003, while burdened with several miscarriages of fact and logic, makes no provisions for the lateness of the procedure, just the nature of the procedure. The real battle begun by this week's SCOTUS ruling is not over "late term" abortions, but "mid term" abortions, meaning second-trimester abortions performed before a fetus is possibly viable.

Roughly 10 percent of all abortions in the U.S. are performed after the first trimester and before 20 weeks' gestation, or about two thirds of the way through the second trimester. Some of these are performed for medical reasons, and some are elective. However, when a pregnancy is terminated before 20 weeks' gestation, the fetus will die, no matter how the abortion is performed. No exceptions. So when people start raving about changing procedures so that "the baby has a chance to live," they are confused.

The fact is, there is little agreement about what it was that was just banned. Depending on how the "partial birth" act is interpreted, it might ban no abortions at all, but only stipulate that abortions be performed by different means. Or, it might ban most abortions after the first trimester. And I won't be the least bit surprised if some states "interpret" the act in a way that shuts off access to abortion entirely.

So what was just banned, exactly?

About the only point everyone seems agreed on is that the act bans a second trimester (notice emphasis) procedure called "intact D&E" (sometimes referred to as dilation and extraction, or D&X) in which all but the fetal head is extracted, then the fetal skull is pierced or crushed so it can easily pass through the birth canal. However, the far more common practice in second trimester abortions is dilation and evacuation , also called standard D&E, in which surgical instruments are used to dismember the fetus in the womb, and body parts are pulled out through the birth canal.

Exactly why one procedure is more icky than the other eludes me. However, my understanding is that some physicians prefer intact D&E (or D&X) procedures because with the standard D&E physicians must fish around for all the little fetus pieces, thus increasing risk of injury or infection to the woman. In some cases a woman whose life or health is really on the line might be at less risk with an intact D&E rather than a standard D&E.

There is one other abortion method generally used in the late second trimester called "induction." In this procedure chemicals are introduced into the womb to cause fetal death, and then labor is induced. So far I haven't heard anyone argue that induction is covered by the "partial birth" ban, but I also doubt many Fetus People have heard of it. My understanding is that induction is the most common method used in genuinely late-term abortions, of which I'll speak a bit later in this post.

Analysis of this week's Supreme Court decision written by people who seem to understand these distinctions say that the "partial birth" act actually bans only the "intact D&E," also called D&X, procedure. It does not ban standard D&E or induction abortions, they say. Nor does it change the gestational limits of abortion, so abortions will be no more or less "late term" as they were before. And if you read this section of the Supreme Court's deliberations, this view appears to be correct; the justices interpret the Act to ban D&X, but not standard D&E, procedures.

National Right to Life has its own views (emphasis added).

"Partial-birth abortion" is a legal term of art, defined by Congress as a matter of federal law, as quoted above.

Although supporters and opponents of the new law differ dramatically in their perceptions of what methods the law covers (as discussed below), neither side believes that the legal definition of "partial-birth abortion" is synonymous with the shifting and conflicting descriptions attached in various literature to such pseudo-medical jargon terms as "dilation and extraction," "intact dilation and evacuation," or "intact dilation and extraction."

In short, it is simply inaccurate for journalists to equate the legal term "partial-birth abortion" with these nebulous jargon terms.

For the record, The American College of Obstetricians and Gynecologists says,

Despite the fact that the safety advantages of intact dilatation and evacuation (intact D&E) procedures are widely recognized—in medical texts, peer-reviewed studies, clinical practice, and in mainstream, medical care in the United States—the US Supreme Court today upheld the Partial-Birth Abortion Ban Act of 2003.

The "partial birth" claptrap was coined by the Fetus People as a propaganda tactic, and they define it to please themselves. If in the next few weeks or months they don't decide that the "partial birth" act also covers standard D&E, I will eat my keyboard. Because if the "PAB" Act truly bans only intact D&E/D&X abortion, those celebrating the end of "late term" abortions may be in for a shock. Very likely the same number of abortions will still be performed, and as early or late as they were before.

In today's New York Times, a Cambridge fellow named David Garrow also tells us, soothingly, that hardly anything will actually change.

The Carhart decision is an extremely limited upholding of the federal ban, one that promises to affect very few abortion providers and only a tiny percentage of their patients. The most recent and reliable national statistics, from the Guttmacher Institute, show that only about 30 American doctors ever use the “intact dilation and evacuation” method that has now been criminalized. Only some 2,200 of the 1.3 million abortions performed annually in the United States involve the banned procedure.

Moreover, Justice Kennedy explicitly and insistently limited the reach of the new prohibition. He emphasized that the ban covers only the relatively rare intact dilation and evacuation method, and does not in any way apply to standard dilation and evacuation, the most common method for late-term abortions, in which fetal tissue is removed from the womb piecemeal. Reiterating the standard he embraced 15 years ago in Planned Parenthood v. Casey, Justice Kennedy stated that the ban would impose an undue burden if it covered standard dilation and evacuation and thus would be unconstitutional. ...

... Writing on behalf of the four dissenters, Justice Ruth Bader Ginsburg correctly emphasized that under Justice Kennedy’s holding, “the law saves not a single fetus from destruction, for it targets only a method of performing abortion.”

Also in today's New York Times, Gina Kolata writes,

The Supreme Court decision on Wednesday to uphold a ban on a type of abortion, has huge political implications but, as a practical matter, is unlikely to have much of an effect.

The reason, said Dr. Isaac Schiff, chairman of the department of obstetrics and gynecology at Massachusetts General Hospital in Boston, is that there are safe and readily available alternatives to the banned method, which the law calls partial birth abortion.

“This law by itself, if it were the only law passed, would be a nonoccurrence,” Dr. Schiff said.

I'm not arguing here that we should be complacent, because there is copious medical testimony from ACOG and others that under some circumstances the alternative methods could put some women at increased risk. And you know the Fetus People are not going to be content with the "PBA" law. They will push ahead to legislate more restrictions. This was just a beginning.

On the other hand, I do think we need to be careful about making predictions of wholesale slaughter of women resulting from the "PBA" ban. There may not be a statistically significant result, in which case the Fetus People will be emboldened, and we who think women are not brood animals might be less credible when they try to extend the ban to other procedures.

Now, about real late-term abortions --

Organizations working to criminalize abortion have done a great job conflating the terms "late term" and "partial birth," and I infer most wingnuts think they're the same thing. This has led to fuzzy headed assumptions (such as the one quoted at the top of this post) that women routinely waltz into abortion clinics in the last trimester of pregnancy and demand abortions because they are having a bad hair day. But I've seen no authoritative data saying that elective third-trimester abortions are being performed by licensed medical personnel anywhere in the U.S., including those few states that haven't expressly banned them.

And it's very rare for a viable fetus to have to be sacrificed to save a mother. I understand third-trimester abortions are most commonly done when the fetus is already dead or has no hope of survival, but I don’t have a source to prove that. On the other hand, "rare" is not "never," and if you (or your wife, or daughter, or sister, or mother) are one of the rare exceptions, is that OK? And how weird is it to justify sacrificing the life of even one woman for some twisted principle misnamed the "right to life"?

Eleanor Clift writes of third-trimester abortions:

Late-term abortions account for only .08 percent of the 1.3 million abortions that take place in this country every year. Most of that .08 percent are done to protect the life of the mother, so they are not affected by the Court’s ruling. This is a tiny, tiny sliver of a much larger issue. Politicians of either party seeking the center on an issue with such moral ramifications should be able to agree on ways to reduce abortions without criminalizing a medical procedure—and putting doctors, and potentially, women, in jail.

But today wingnuts everywhere no doubt still believe that "late term" abortions are banned. And this takes us to why NARAL is one of the most worthless advocacy organizations ever invented. For years newspaper and television reporters have sloppily used "late-term abortion" as a synonym for whatever it is the wingnuts call "partial-birth abortion." And for years I've been yelling at television screens "MID-term, you twit!" to no avail. NARAL really should have been working hard to educate journalists about the distinctions. I see no evidence they ever did so. Instead, journalists have been getting all of their "information" from abortion criminalization groups and repeating their propagandistic language.

There have been some excellent critiques of NARAL on firedoglake this past week, including this one by Brendan and this one by Phoenix Woman. If you are upset by this week's SCOTUS ruling, whatever you do don't donate money to the national NARAL organization. Volunteer or donate money to a local NARAL chapter or, even better, Planned Parenthood.

Back in the 1970s I thought NARAL was making a big mistake not to issue a clear statement in support of banning elective third trimester abortions, as Roe v. Wade allowed, by any means. NARAL was concerned about the famous slippery slope, but I think making a clear distinction about elective post-viability abortions would have defused much rightie propaganda that has hurt the cause of reproductive rights and health lo these many years.

The fact is -- and having given birth to two babies myself, I say this with authority -- if a woman does not want to be pregnant, she needs to terminate that pregnancy way before the third trimester begins. Because at that point you're about as pregnant as anybody ever gets. The hormones are raging, the ankles are swollen, you may have gained most of your pregnancy weight, and your "innie" belly button has popped out and become an "outie." (I'm explaining this to guys; frankly, I doubt many women have ever willingly carried a pregnancy to the sixth month and suddenly decided to end it.) And by then, however the pregnancy is terminated -- childbirth or otherwise -- it's a big honking medical deal that is riskier than a first-trimester abortion. A legal gestational limit on elective abortion set somewhere between 20 and 23 weeks would simply reflect good medical practice. But that's my sermon.

One more thing -- in an article to be published in tomorrow's New York Times, Erik Eckholm writes that infant mortality rates in some of the southern states are going up.

To the shock of Mississippi officials, who in 2004 had seen the infant mortality rate — defined as deaths by the age of 1 year per thousand live births — fall to 9.7, the rate jumped sharply in 2005, to 11.4. The national average in 2003, the last year for which data have been compiled, was 6.9. Smaller rises also occurred in 2005 in Alabama, North Carolina and Tennessee. Louisiana and South Carolina saw rises in 2004 and have not yet reported on 2005.

Whether the rises continue or not, federal officials say, rates have stagnated in the Deep South at levels well above the national average.

By contrast, many developed nations and some states in the U.S. in recent years have an infant mortality rate of less than 5 per 1,000 live births. Clearly, infants are dying in the South who would not have died had they been born in, say, Massachusetts. Righties love to argue that because of some discrepancies of how infant mortality is calculated by various nations, comparisons between the U.S. and other nations is meaningless (this is bogus, but I'll leave that alone for now). But when you've got a rate of 11.4 in Mississippi and 4.9 in California, I'd say there's something wrong with Mississippi.

But right now I will predict that the state legislatures of these southern states will put little effort in the coming months into improving the health of pregnant women and small children, and will instead work overtime thinking up new ways to restrict abortion. Anyone wanna bet?

Tagged as: abortion, supreme court, scotus

Barbara O'Brien has guest blogged at the Take Back America Conference, Glenn Greenwald's, Unclaimed Territory, and Crooks and Liars. She is the "owner/proprietor" of The Mahablog.