With two new relatively conservative Supreme Court nominees finally seated, the crisis which many have expected is upon us as the court prepares to hear and rule on an administration challenge to lower court decisions which overturned the 2003 law banning ‘partial birth abortion’ nationwide.
The Supreme Court has previously ruled against similar state bans like the one passed in Nebraska on the basis that they didn not include exemptions to allow for abortions if it was deemed necessary in order to save the life of the mother.
Partial Birth Abortion is the popular term for the “Intact Dilation and Extraction” procedure pioneered by Dr. Martin Haskell in the late 1980s. It is a process whereby a late term pregnancy is terminated by chemically inducing dilation of the cervix and removing the fetus vaginally. Before extraction is complete the skull is punctured and then collapsed by vacuuming out the brain, making forced extraction of the fetus easier.
This method is used only in pregnancies in the fifth month or later and most commonly with fetuses who have gross genetic abnormalities, particularly hydrocephaly which usually results in death either before or shortly after birth and presents some danger to the mother in the delivery process. However, use of this technique is not limited to medical necessity and it can be performed for purposes of elective abortion. Abortions of this sort are extremely rare, less than .2% of all abortions performed nationwide, which totals less than 3000 cases a year.
The practice is condemned by many as unethical, because a late-term fetus stands a good chance of living outside the womb with only minimal medical support, and because the partial delivery of a potentially viable baby followed by direct termination of life by the doctor seems much more like infanticide than abortion of a non-viable fetus.
This form of abortion draws objections not only from those who oppose all abortions on principle, but also from many medical ethicists who believe that life begins at the point where a baby could be delivered and live on its own without artificial life support. Since this type of abortion can theoretically be applied up to the point of natural birth that puts it in a very controversial ethical gray area. The counter-argument is that there is a legitimate need for this sort of procedure in cases of hydrocephaly which cannot be diagnosed until after the 5th month and which both presents real risks to the mother and also a best case outcome of a grossly deformed and brain damaged baby.
The 2003 law which will go before the Supreme Court is different from previous bans which were struck down because it does include a provision to allow the procedure when the mother’s life is in danger. Critics say that this provision is not sufficiently broad as it doesn’t allow for abortion in cases where there is concern for the quality of life of the baby or the general physical and mental health of the mother. The law is also controversial because it provides for a 2 year jail term for doctors carrying out the procedure. The current law was struck down by courts in three different states before it was taken to the Supreme Court.
As the Supreme Court is currently configured there are four justices (Souter, Kennedy, Ginsberg and Stevens) who voted to strike down the previous Partial Birth Abortion laws to come before the court, three who voted to support the ban (Scalia, Thomas and Breyer) plus the two new justices (Roberts and Alito) whose positions are unclear. The concern of those who oppose the ban is that both of the new justices will vote against them and the law will be upheld. Their best hope is that the new justices stated belief in the importance of precedence will prompt at lest one of them to follow the pattern of the prior cases, producing a 5-4 decision against the ban.
This decision is being seen as by both sides in the controversy as a first step towards overturning Roe vs. Wade and banning all abortion, but this perspective is unrealistic and basically scaremongering to stir up outrage among the constituencies of pro and anti abortion groups. This type of abortion is significantly different from the much more common early term procedures and there is no logical reason to believe that a support of the ban would indicate any change in position on less extreme forms of abortion. Partial Birth Abortion raises medical ethical issues about the viability of the aborted fetus which are not at issue with other forms of abortion, but it also serves a legitimate medical purpsose and is not generally used for true elective abortion.
The rational policy course is clearly to seek to minimize the instances of this sort of abortion, but to make sure that it remains available in cases of medical need. Unfortunately the law currently going before the Supreme Court doesn’t quite meet that standard, because it doesn’t sufficiently define the instances in which the procedure is medically necessary. The ideal solution is for the court to uphold the ban, but use their decision to clearly define the medical circumstances where exceptions should apply and define them broadly enough that only elective abortions after the 5th month would be prohibited. The court has made rulings where they redefined or explained laws in the past, but the current court may be hesitant to do so because of the appearance of legislating from the bench. If that is a concern then the most sensible course would be to strike down the law and send it back to Congress so that they can redefine the medical circumstances in which the procedure would be legitimate.
Whatever the ultimate outcome this is clearly a test for the court, to see if they are willing to step in and be a little proactive to solve a problem that they are in a unique position to deal with, or whether they will play it safe and pass the buck back to Congress, or in the ultimate scenario uphold the ban, sending a clear message that with their new members the court is going to lean as conservative as many on the left have accused them of being.