A Doctor's Right To Choose

The woman is positioned flat on her back, legs raised well above her shoulders, her ankles supported by hanging cloth loops. Her arms are outstretched on the retractable wings of the surgical table. She stares at the ceiling as the OB/GYN strides into the operating room and the anesthesiologist gets to work.

She is 34, has children at home, is missing a front tooth and is currently 23 weeks pregnant. Like the seven other pregnant women scheduled to pass through this operating room today, she will have a surgical abortion. Her doctor will decide, based solely on her medical circumstances, which technique to use. Congress already has called repeatedly for a ban on one of his choices -- a procedure called intact dilation and extraction, dubbed "partial birth abortion" by opponents of its use. And the surgeon is well aware that his ability to base his decision on an evaluation of his patient's medical circumstances may not last. But if, for this woman's safety, the doctor opts to perform a so-called "partial birth abortion," he will be operating -- for now, at least -- within the law.

In approximately 40 minutes, the woman is gently shaken by a nurse, and she blinks slowly in a sedated haze. Her pregnancy is over as the result of an intact dilation and extraction. As she struggles to consciousness, the nurse leans over her and whispers, "Don't forget to thank the doctor, now." Had she the means, the patient also might have extended her thanks to the Supreme Court -- or at least to the five justices who left her health in her doctor's hands.

In a ruling two years ago, the Supreme Court (in Stenberg vs. Carhart) found that a Nebraska ban on abortion by intact dilation and extraction was unconstitutional for two reasons: It provided no exception for the "health of the woman" and without such an exception, the ban placed an "undue burden" on a pregnant woman's constitutional right to choose. Furthermore, after hearing expert testimony, the court found a "substantial likelihood" that the procedure was "a safer abortion method in certain circumstances."

The Stenberg vs. Carhart decision effectively knocked down bans on abortion by intact dilation and extraction in 31 states, but the ruling, and the earlier vetoes by then-President Bill Clinton of two similar bans passed by Congress, did not quash efforts to outlaw the procedure. The justices were divided 5 to 4 on the issue, leaving abortion foes with potential wiggle room for new ban proposals, and opening up the possibility of rancorous debate on any upcoming nominations to the court. Indeed, abortion foes in the House of Representatives last month proposed, yet again, a bill that would ban the procedure. The legislation, which does not include an exception for a woman's health, is nearly identical to the ban that was found unconstitutional, and is scheduled to be debated Wednesday on the House floor.

At this point, it is all but certain that the country is in for a grueling political trudge back into the womb. And that might be a good thing. In the 29 years since Roe vs. Wade, an inexorable shift has occurred in the abortion wars, one that has turned attention away from a pregnant woman's health toward the primacy of fetal rights. A majority of the bans on partial birth abortion at the state and federal level failed to take into consideration the health of the woman, and the Bush administration, in its consistent moves to advance fetal rights and afford legal protection to the unborn, as well as in its support for the newest proposed ban on partial birth abortion, is clearing the way for a focus on the fetus at the expense of the woman.

Last January, the Department of Health and Human Services announced that the federal definition of "child" would now begin at conception, a step, said HHS Secretary Tommy G. Thompson, to "help poor mothers [to] be able to take care of their unborn children and get the medical care they absolutely, vitally need." While it is not clear how a policy that offers health insurance to a fetus, but not to its mother, might advance the health of poor women, it firmly places fetal health above maternal health, and sets the stage for ghastly conflicts of interest between a woman and her fetus's doctor.