Abortion Wars in Congress

Two years in prison. That is the penalty awaiting any doctor who performs a certain late-term abortion procedure under a bill sent from Congress to the White House in early December. There will be civil penalties, too, and fines for the father of the unborn child and even, if the mother is under 18, for the purported grandparents. The measure would mark the second time since Roe v. Wade that a medical procedure has been criminalized. But it's the first time the attempt has originated in Congress. The banned procedure is called D&X, or dilation and extraction, by the one doctor in the country who is known to perform it. But it goes by several other names. Seeking a wedge into the U.S. Supreme Court, U.S. Rep. Charles Canady (R-Florida), the bill's originator, dubbed the procedure "partial-birth abortion." Other abortion opponents, playing the gross-out angle, call it the "brain suction" abortion. They are all accurate descriptions. Both the procedure itself and the attempt to stop it raise profound questions about abortion rights, doctors' responsibility to the women they serve, and the legal definition of personhood. A similar ban has already become law in Ohio, where it was challenged in court in November. But the federal ban on the procedure is headed straight for President Clinton's veto; the question now is whether the bill can be modified to pass muster with either Clinton or 12 more senators - the number required to override the president's objections. Yet regardless of the outcome - and a challenge to the ban will certainly reach the Supreme Court - the battle over D&X is a watershed in the abortion debate, marking the first time since before the Roe decision that Congress has sought to stop a type of abortion on purely moral grounds. The attack on D&X also signals an intricate legal strategy by which abortion opponents seek to undermine the very logic of Roe v. Wade, and the entire premise that for 22 years has held that an adult American woman has the right to terminate her pregnancy. "The reason we picked this particular procedure is because Roe v. Wade decided that unborn babies are not constitutional persons," Keri Harrison, a staffer for the House Subcommittee on the Constitution, who drafted the Canady bill, said in July. "But the decision says nothing about people in the process of being born." It is this ambiguity, both legal and moral, that drives the latest lunge at abortion rights. And ironically, the doctors who pioneered the procedure supplied anti-abortion groups all the ammunition they needed three years ago when they discussed the procedure's benefits at a seminar of abortion providers. The publication of "Dilation and Extraction for Late Second Trimester Abortions," a monograph presented at the National Abortion Federation's 1992 Risk Management Seminar, may go down in history as the catalyst of an abortion-rights waterloo. In the paper, Dr. Martin Haskell, the Ohio doctor who pioneered the procedure, walks his colleagues through the procedure using clinical language. He refers also to James T. McMayhon, a California doctor who, before his death a few weeks ago, performed the same technique on fetuses of "up to 32 weeks" gestation. The National Right to Life Committee got wind of the procedure a few months later, just as congressional Democrats were circulating a bill that would have precluded states from enacting most abortion regulations. Called the Freedom of Choice Act, it threatened to undercut the anti-abortion movement's long-term strategy of chipping away at abortion rights in each state. The D&X procedure provided the ideal cudgel with which to bludgeon supporters of the bill. The procedure was seemingly ready-made for abortion opponents. Used in fewer than 1 percent of all abortions, in cases beyond 20 weeks' gestation, this is what happens: The pregnant woman, her cervix dilated over two days, is given a pain killer and made to lie flat with her feet in stirrups. The doctor reaches into her with forceps and grabs one of the fetus' feet, pulling it into the birth canal. He vaginally delivers the fetus' body and arms, but the head stays inside, because it is usually too big to fit through the cervix. The doctor uses a six-inch, blunt-nosed scissors to open a hole at the base of the fetus' skull, and expands the scissors inside the head to make the hole bigger. Then he uses a suction catheter to, in the words of Haskell, "evacuate the skull contents." The soft head collapses and the abortion is completed. "We told Congress if they vote for Freedom of Choice, they're voting for this," says Douglas Johnson, the National Right to Life Committee's federal legislative director. Response to the drawings was predictable. At first the National Abortion and Reproductive Rights Action League (NARAL), the premier pro-choice organization, questioned the drawings' accuracy. Haskell confirmed their accuracy to the American Medical News, the newsletter of the American Medical Association (he attacked the newsletter's 1993 story in July of this year, as abortion opponents trundled out the drawings once more. Haskell said he was quoted out of context and took issue with the artist's presumption that the fetus was "aware and resisting." The editors produced a transcript of the taped interview to defend its reporting). Next, NARAL claimed that the fetus was dead before the scissors were used. NARAL was wrong. The drawing became one of the most effective tools anti-abortionists had ever known, far surpassing the lurid photos of bloody fetuses and plastic models of fetuses in jars. The Freedom of Choice bill died. But in those days before the Republican takeover of Congress, the anti-abortion lobby was just warming up. "This method is performed after the unborn child is so developed that he or she is fully capable of experiencing pain," Canady wrote in a Nov. 1, 1995, op-ed piece for The Wall Street Journal, as his bill passed the House by a lopsided 288-139 vote. "Partial-birth abortion is a repulsive procedure." But the lobby's moral outrage threatens to obscure some important considerations. "Try to explain to someone an autopsy," says Kathryn Kolbert, vice president of the New York-based Center for Reproductive Law and Policy. "Try to explain heart surgery. The reality is that the women's lives who are affected by this procedure are gruesome. They are told they are carrying a baby that has no brain, or where the kidneys are growing outside the body, or with no limbs. These are tragedies for these families. It seems to me that to take away from these women the safest medical procedure is the cruelest thing this Republican Congress could do." Kolbert was the lead plaintiff's attorney for the 1992 Supreme Court case that reaffirmed Roe. In Planned Parenthood v. Casey, the court upheld the central tenet of the Roe decision, which is that the state cannot prohibit abortions before the fetus reaches viability, and can only proscribe abortion after viability in cases where the procedure would not be undertaken to save the life or preserve the health of the mother. Kolbert is co-counsel in a lawsuit seeking to overturn an Ohio ban of the D&X procedure, which was scheduled to become law in that state this past Nov. 14. She says the Ohio law is "one of the most poorly-drafted pieces of legislation I have ever seen." The federal bill's intent is the same: to demolish Roe. The health of the women, it seems, is not an issue. The standard late-term abortion procedure, the dilation and evacuation, or D&E, requires the physician to dismember the fetus in the womb. At 20 weeks gestation, the fetal tissues are becoming tough, the bones sharp, and perforation of the uterus is a serious possible complication. "The real issue for the women who were seeing Dr. McMayhon [for the D&X] was preservation of their fertility for future pregnancies," says Kolbert. "These women had wanted pregnancies. Most of these babies were named, they had cribs set up. That's the irony here: You have an attempt to ban a procedure, and the affected women want to have children." But the diagram depicts a presumably healthy fetus, and both McMayhon and Haskell told interviewers in the past that the majority of D&X abortions they did were "elective." The question of how to define the health of the mother is central to the debate about D&X. The courts have balanced the rights of a viable fetus against the mother's life and health, and since the 1973 Roe decision "health" has been defined broadly, and includes a woman's mental well-being. This infuriates right-to-lifers, who have sought, unsuccessfully, to narrow that definition for the past 20 years. "The states were not able to place any meaningful limits on abortion," says Johnson of the National Right To Life Committee, "since the physician could always argue it was done for the mother's mental well-being." The notion that the health clause has been abused is central to anti-abortion thinking. But, says Kolbert, there isn't any evidence to support it. The D&X is done about 600 times a year. "Less than a half a percent of all abortions - that doesn't sound like an abuse to me." The Ohio law defines health narrowly, allowing the procedure only in cases where the pregnancy threatens the mother with "loss of a major bodily function." Canady's bill allows no health exception, and would allow the doctor only to argue at his trial that he did the D&X to save the mother's life. The Supreme Court has never allowed such reasoning. "The protection of health is a physician's judgment," says Kolbert. "His view of what's going to protect the patients' health is what is paramount." Opponents of the D&X procedure often cite cruelty to animals statutes in decrying the supposed barbarism of this type of abortion. Such an argument, of course, could be marshaled against any abortion procedure. But the real aim of the legislation is to question the notion of when the birth process begins. To lend a legalistic patina to this effort, the National Right to Life Committee employed David Smolin, a law professor at Samford University in Alabama, to testify on behalf of Canady's bill on June 15. "A physician deliberately killing a fetus ... who is physically literally on the verge of constitutional personhood, undermines respect for human life and for constitutional personhood, because such a fetus appears indistinguishable from a constitutional person," Smolin said. The concept boils down to a succinct rallying cry: "The difference between abortion and murder is three inches." Yet the questions the anti-abortion bill begs are many: Who makes the decision whether and when to abort - the mother and her doctor, or the grandparents and their congressman? Who decides what medical technique is best? In whose interest does the doctor work - the woman or her fetus? All of these issues were settled in Roe v. Wade and several subsequent Supreme Court decisions, and all were settled in favor of the right of the woman, in consultation with her doctor, to choose abortion. The exceptions are very narrow. In 1992 the court said the state can regulate abortions in some cases after the fetus reaches "viability," generally recognized as after 28 weeks' gestation. Before then, no law can be passed that would tend to create an "undue burden" on a woman attempting to get an abortion for any reason. In Florida, abortions are already hard to get, owing to a generally intolerant atmosphere punctuated by gunfire. While law enforcement has apprehended the killers of doctors, it is safe to assume that Florida doesn't make the "best places to work" list for the dwindling numbers of OB/GYN grads who do abortions. Encouraged by the political tenor, anti-abortion arguments continue to develop a free-wheeling, soundbite-driven logic that contrasts with the deeper facts and circumstances of the women who will be affected. "Anyone who says Roe v. Wade protects yanking a baby out and stabbing its head with scissors," Johnson says, "is providing a good argument for taking another look at Roe v. Wade." And so it goes. Kolbert was hopeful that the federal ban would not gather a veto-proof number of Senate adherents, and she was right; the final vote was 54-44, and at least 12 more "yes" votes are required to bypass Clinton's objection. She keeps her faith in the Supreme Court, too. "I'm pretty sure the court will stand by its decision," she says. "They just visited it in 1992; in 1986; several times since Roe." In fact, the first significant challenge to Roe came in 1976, in Planned Parenthood of Central Missouri v. Danforth. At issue was a "repulsive" abortion procedure called "saline amniocentesis," then the most common procedure used after 12 weeks' gestation. The statewide ban was ruled unconstitutional, in part, "because it forces a woman and her physician to terminate her pregnancy by methods more dangerous to her health than the method outlawed." In abortion, as in politics, the more things change, the more they stay the same.