If there is one thing you should know about me, it is that I can be thorough to the point of being OCD. After the landmark Supreme Court decision today (in case you missed it, SCOTUS upheld the "Partial Birth Abortion Ban" of 2003), I went ahead and read the original law, the entire SCOTUS decision (all 73 pages of it, including every judicial opinion and the dissent written by Justice Ginsburg), several first-hand accounts by women who had D&X procedures for anencephaly, looked through Dr. Tiller's statistics on when and how he performs late-term abortion, and lastly educated myself on how to perform both D&E (Dilation and Evacuation) and D&X (Dilation and Extraction AKA IDX AKA Intact D&E AKA Partial Birth Abortion). I'll refer to the procedure as D&X for the purposes of this article to maintain continuity.
Now that I've advised you of my credentials, we can chat in relatively plain English.
The Origin Of The D&X Procedure
For starters, let's point out that none of these procedures are possible without dilation of the cervix. This is usually done by inserting several pieces of dried seaweed into the cervical os, which over the next day or two will soak up fluid and expand, dilating the cervix to allow the doctor access to the uterine cavity. This is a notoriously erratic procedure, and the amount of dilation varies highly from woman to woman, depending on the tone of the surrounding muscle, the amount of fluid absorbed, and just about everything else in between.
Frankly, the easiest way to remove a fetus is simply to grab and pull. Since everything is still forming, pieces start coming off, and before you know it, you've dismembered the fetus in utero and everything is gone. Fetal parts get discarded in a dish, and mom wakes up minus one pregnancy. This is the basis of the D&E. The problem with this procedure is that occasionally pieces go missing, which can lead to infection and possibly death. It also means repeatedly introducing instruments into the uterus, which carries a risk of perforation, contamination, and infection. This leads us to...
... Dr. James McMahon, who in 1983 decided that there had to be a better way of doing things. He realized that occasionally (if the dilation went better than planned), a large part of the fetus will come out, leading less to an evacuation of fetal parts, and more of an extraction of the whole fetus. By pulling the baby through the dilated cervical canal feet-first, everything could be removed from the uterus with the exception of the head, which is the largest part. There are then several ways to reduce the size of the head, notably vacuum-suctioning the brains out, crushing with forceps, or poking holes with curved scissors. The fetus is then removed, whole, and again, the mother wakes up sans pregnancy. Safer, faster, fewer bad outcomes â€“ now we have the D&X. All clear? Moving on toâ€¦
The 2003 Partial Birth Abortion Ban
I'm going to paraphrase and highlight the really important bits here.
Doctors cannot perform the D&X procedure on a living fetus unless mom will die without it, on penalty of jail & fines. --Congress
The 2007 SCOTUS Ruling
Now this is where things get really interesting. Quite a number of states, patients, and doctors immediately sued to overturn the 2003 law on several grounds: that it was too vague, that it was unconstitutional, that it breaches the terms set out in Roe v. Wade â€“ specifically that of undue burden. The Supreme Court decided to hear it. They debated, and on April 18, 2007, delivered the 5-4 landmark decision: in short, the ban stands.
Opinion of the Court
* * *
Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman's right to abortion based on its overbreadth or lack of a health exception. For these reasons the judgments of the Courts of Appeals for the Eighth and Ninth Circuits are reversed.
It is so ordered.
This all being said, there is some very interesting language in the preceding 45 pages of the opinion.
What It Explicitly States
For starters, if the doctor's INTENT is to perform a D&E - that is to say, removal of the fetus in parts - but the cervix is dilated enough to allow the whole fetus to come out, the ruling states this is expressly legal (and is termed in the opinion an "accidental D&X"). This extends as well to D&E's that procedurally turn into D&X. Secondly, a huge amount of the discussion centers around what is meant by "living fetus" as it pertains to the law. Specifically, injecting potassium before performing the D&X- thereby killing it before the procedure - is also legal. Lastly, a distinction is made expressly condoning the practice of routine D&E.
What It Means
D&X is still a valid medical procedure, provided that the fetus is already dead - which means killing the fetus beforehand in any way completely circumvents the ruling. Therefore, a very minor change is required by medical staff providing such abortions. Obviously there's more to it than that- but since the mother usually needs to come in a day beforehand for the cervical dilation, on the surface this is a relatively simple thing to do.
Of course, the scathing dissent written by Justice Ginsburg brings up several important points. Why does the law single out D&X? What makes this procedure so much more inherently gruesome than, say, dismembering a fetus limb by limb in the original D&E procedure? How is this anything other than a veiled attempt to decrease access to abortions? Furthermore, what right do politicians have to interfere with a doctor's choice of which procedure to perform, especially when D&X is demonstrably safer for the mother? Certainly political meddling was widely condemned during the Terry Schiavo fiasco.
My Own Personal Opinion
I don't think this is going to change the practice of abortion in a substantial way. As of today, standard medical practice for a D&X will be preceded by a lethal injection to the fetus, making it as legal as it was yesterday. Hopefully no maternal deaths will occur from the deadly cocktail leaking back out into mom's bloodstream. Planned Parenthood will distribute information to every OB/GYN and family doctor who provides abortion, informing them of the continued legality of the procedure. On the plus side, euthanasia of the fetus is now required before performing a D&X (though, I think this is more a side effect of the law than the intended outcome).
So to me, this ruling bears the question: exactly what was the point? If nothing has changed but a slight procedural variation, how is this anything other than a political message?
I hope this was informative for you all. Please take note- I'm not a lawyer, so get my facts checked if you're going to use any of my arguments in a legal sense.
The ruling itself, along with opinions and dissent.
The original 2003 Partial Birth Abortion law.
Dr. Tiller's late-term abortion for fetal anomaly statistics.
A first hand account of partial birth abortion for spina bifida.