Intact dilation and extraction
Encyclopedia
Intact dilation and extraction (IDX) is a procedure done in late term abortion. It is also known as intact dilation and evacuation, dilation and extraction (D&X, or DNX), intrauterine cranial decompression and, vernacularly in the United States, as partial birth abortion. The procedure may also be used to remove a fetus that is developed enough to require dilation of the cervix for its extraction.
Though the procedure has had a low rate of use, representing 0.17% (2,232 of 1,313,000) of all abortions in the United States in the year 2000, according to voluntary responses to an Alan Guttmacher Institute survey, it has developed into a focal point of the abortion debate
. In the United States, intact dilation and extraction was made illegal in most circumstances by the Partial-Birth Abortion Ban Act
, which the U.S. Supreme Court upheld in the case of Gonzales v. Carhart
.
, this procedure has four main elements. Usually, preliminary procedures are performed over a period of two to three days, to gradually dilate the cervix using laminaria
tents (sticks of seaweed which absorb fluid and swell). Sometimes drugs such as pitocin, a synthetic form of oxytocin, are used to induce labor. Once the cervix is sufficiently dilated, the doctor uses an ultrasound and forceps
to grasp the fetus's
leg. The fetus is turned to a breech position
, if necessary, and the doctor pulls one or both legs out of the cervix, which some refer to as 'partial birth' of the fetus. The doctor subsequently extracts the rest of the fetus, leaving only the head still inside the uterus. An incision is made at the base of the skull, a blunt dissector (such as a Kelly clamp) is inserted into the incision and opened to widen the opening, and then a suction catheter
is inserted into the opening. The brain
is suctioned out, which causes the skull
to collapse and allows the fetus to pass more easily through the cervix. The placenta
is removed and the uterine
wall is vacuum aspirated
using a cannula
.
. The term is not recognized as a medical term by the American Medical Association
nor the American College of Obstetricians and Gynecologists. This term was first suggested in 1995 by Congressman
Charles T. Canady
, while developing the original proposed Partial-Birth Abortion Ban
. According to Keri Folmar, the lawyer responsible for the bill's language, the term was developed in early 1995 in a meeting among herself, Charles T. Canady, and National Right to Life Committee
lobbyist Douglas Johnson. Canady could not find this particular abortion practice named in any medical textbook, and therefore he and his aides named it. "Partial-birth abortion" was first used in the media on 4 June 1995 in a Washington Times article covering the bill.
In the U.S., a federal statute defines "partial-birth abortion" as any abortion in which the fetus is extracted "past the navel [of the fetus]... outside the body of the mother," or "in the case of head-first presentation, the entire fetal head is outside the body of the mother," in order to cause death of the fetus. The U.S. Supreme Court has held that the terms "partial-birth abortion" and "intact dilation and extraction" are basically synonymous. However, there are cases where these overlapping terms do not coincide. For example, the IDX procedure may be used to remove a deceased fetus (e.g. due to a miscarriage
or feticide
) that is developed enough to require dilation of the cervix for its extraction. Removing a dead fetus does not meet the federal legal definition of "partial-birth abortion," which specifies that partial live delivery must precede "the overt act, other than completion of delivery, that kills the partially delivered living fetus." Additionally, a doctor may extract a fetus past the navel and then cut through the neck of the fetus. This could fall within the terms of the statute, even though it would not result in an intact body and therefore would not be an intact dilation and extraction.
In addition to the federal ban, there have also been a number of state partial-birth abortion bans. There, courts have found that state legislation (rather than federal legislation) intended to ban "partial-birth abortions" could be interpreted to apply to some non-intact dilation and evacuation
(D&E) procedures. Though sometimes performed during the same developmental stage wherein most IDX procedures are done, non-intact D&E is a separate procedure.
There is debate over use of the term "partial-birth abortion". Those who oppose the term consider it a political term used to frame
the argument in a way which is favorable to those who seek greater legal restrictions, or a total ban, on this or all abortion procedures, and have called the alleged political framing "partial truth abortion".
, is unjust. Critics consider the procedure to be infanticide
, a position which many in the pro-life movement extend to cover all abortions. Some advocates, both for and against abortion rights, see the IDX issue as a central battleground in the wider abortion
debate, representing an attempt to set a legal precedent so as to gradually erode access to all abortion methods.
Dr. Martin Haskell
has called the IDX procedure "a quick, surgical outpatient method" for late second-trimester and early third-trimester abortions. The Partial-Birth Abortion Ban Act
of 2003 describes it as "a gruesome and inhumane procedure that is never medically necessary."
According to a BBC
report about the U.S. Supreme Court's decision in Gonzales v. Carhart
, "government lawyers and others who favour the ban, have said there are alternative and more widely used procedures that are still legal - which involves dismembering the fetus in the uterus." An article in Harper's
magazine stated that, "Defending the Partial-Birth Abortion Ban... requires arguing to judges that pulling a fetus from a woman's body in dismembered pieces is legal, medically acceptable, and safe; but that pulling a fetus out intact, so that if the woman wishes the fetus can be wrapped in a blanket and handed to her, is appropriately punishable by a fine, or up to two years' imprisonment, or both." The U.S. Supreme Court has stated that intact D&X remains legal as long as there is first an "injection that kills the fetus."
There is also controversy about why this procedure is used. Although prominent defenders of the method asserted during 1995 and 1996 that it was used only or mostly in acute medical circumstances, lobbyist Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers
(a trade association of abortion providers), told the New York Times (February 26, 1997): "In the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along."
Some prominent pro-choice advocates quickly defended the accuracy of Fitzsimmons's statements, whilst others condemned Fitzsimmons as self-serving.
In support of the Partial-Birth Abortion Ban Act, a nurse who witnessed three IDX procedures found them deeply disturbing, and described one performed on a 26½-week fetus
with Down Syndrome
in testimony before a Judiciary subcommittee of the US House of Representatives, where she stated "[t]he baby’s little fingers were clasping and unclasping, and his little feet were kicking," right before the procedure.
A journalist observed three IDX and two D&E procedures involving fetuses ranging from 19 to 23 weeks. She "watched for any signs of fetal distress, but ... [she] could see no response, no reflexive spasm, nothing. Whether this was a result of the anesthesia or an undeveloped fetal system for pain sensitivity, one thing was clear: There was no discernible response by the fetus."
Abortion provider Warren Hern
asserted in 2003 that "No peer-reviewed articles or case reports have ever been published describing anything such as 'partial-birth' abortion, 'Intact D&E' (for 'dilation and extraction'), or any of its synonyms." Therefore, Hern expressed uncertainty about what all of these terms mean. The U.S. Supreme Court held in Gonzales v. Carhart that these terms of the federal statute are not vague because the statute specifically detailed the procedure being banned: it specified anatomical landmarks past which the fetus must not be delivered, and criminalized such a procedure only if an "overt" fatal act is performed on the fetus after "partial delivery."
in Congress
, the U.S. House of Representatives
and U.S. Senate
have moved several times to pass measures banning the procedure. Congress passed two such measures by wide margins during Bill Clinton's presidency
, but Clinton veto
ed those bills in April 1996 and October 1997 on the grounds that they did not include health exceptions. Subsequent congressional attempts at overriding the veto were unsuccessful. Doctors "have been successfully sued for failure to refer patients for late-term abortions in cases of fetal abnormalities."
A major part of the legal battle over banning the procedure relates to health exceptions, which would permit the procedure in special circumstances. The 1973 Supreme Court decision Roe v. Wade
, which declared many state-level abortion restrictions unconstitutional, allowed states to ban abortions of post-viable fetuses unless an abortion was "necessary to preserve the life or health of the mother." The companion ruling, Doe v. Bolton
, upheld against a vagueness challenge a state law that defined health to include mental as well as physical health. The Court has never explicitly held, as a matter of constitutional law, that states have to allow abortions of post-viable fetuses if doing so is necessary for the woman's mental health, but many read Doe as implying as much. The concern that the health exception can be read so liberally partly explains why supporters of the Partial-Birth Abortion Ban Act did not want to include one.
The Act includes an exception for the life of the woman, but explicitly not for non-life-threatening health issues; opponents believe that this exception is too narrow and have mounted numerous legal challenges. Congress asserted that the procedure is never necessary for maternal health.
In 2003, the Partial-Birth Abortion Ban Act
(H.R. 760, S. 3) was signed into law; the House passed it on October 2 with a vote of 281-142, the Senate passed it on October 21 with a vote of 64-34, and President George W. Bush
signed it into law on November 5.
Beginning in early 2004, the Planned Parenthood Federation of America, the National Abortion Federation
, and abortion doctors in Nebraska challenged the ban in federal district courts
in the Northern District of California
, Southern District of New York
, and District of Nebraska
. All three district courts ruled the ban unconstitutional that same year. Their respective federal courts of appeals
—the Ninth Circuit
, Second Circuit
, and Eighth Circuit
, respectively—affirmed these rulings on appeal.
The three cases were all appealed to the U.S. Supreme Court
, and were consolidated into the case Gonzales v. Carhart
. On April 18, 2007, the Supreme Court voted to uphold the Partial-Birth Abortion Ban Act
by a decision of 5-4. Justice Kennedy
wrote for the majority and was joined by Justices Thomas
, Scalia
, Alito
, and Chief Justice Roberts. A dissenting opinion was written by Justice Ginsburg
and joined by Justices Stevens
, Souter
and Breyer
.
Many states have also passed bans specifically on the IDX procedure. The first was Ohio, which in 1995 enacted a law that referred to the procedure as dilation and extraction. In 1997, the United States Court of Appeals for the Sixth Circuit found the law unconstitutional on the grounds that it placed a substantial and unconstitutional obstacle in the path of women seeking pre-viability abortions in the second trimester.
Between 1995 and 2000, 28 more states passed Partial-Birth Abortion bans, all similar to the proposed federal bans and all lacking an exemption for the health of the woman. Many of these state laws faced legal challenges, with Nebraska's the first to reach decision in Stenberg v. Carhart
. The Federal District Court held Nebraska's statute unconstitutional on two counts. One being the bill's language was too broad, potentially rendering a range of abortion procedures illegal, and thus, creating an undue burden on a woman's ability to choose. The other count was the bill failed to provide a necessary exception for the health of the woman. The decision was appealed to and affirmed by both the Eighth Circuit and the Supreme Court on June 2000, thus resolving the legal challenges to similar state bans nationwide.
Since the Stenberg v. Carhart decision, Virginia, Michigan, and Utah have adopted legislation very similar to the Nebraska law overturned as unconstitutional. The Michigan law were similarly struck down --- for broadness and failure to provide a health exemption. Utah's law remains on the books, pending trial, but is unenforceable under a court-ordered preliminary injunction. Virginia's Law was initially ruled invalid, but was reversed and remanded to the District Court in the wake of the Gonzales v. Carhart decision, where it was upheld as constitutional. This is despite the fact the Virginia law criminalizes abortions for accidental D & X procedures, as well as intentional D & X.
In 2000 Ohio introduced another "partial-birth abortion" ban. The law differed from previous attempts at the ban in that it specifically excluded D&E procedures, while also providing a narrow health exception. This law was upheld on appeal to the Sixth Circuit in 2003 on the grounds that "it permitted the partial birth procedure when necessary to prevent significant health risks."
In 2003 the Michigan Senate introduced Senate Bill No. 395. The bill, which would change the legal definition of birth, would in effect ban partial birth abortions. The definition of birth as defined in the bill was that once any part of the body had passed beyond the vaginal plane of introitus it is considered a birth. The bill included an exemption for the mother's health. The bill was passed by both the Senate and House of Representatives but was vetoed by governor Jennifer Granholm
.
government policy on the issue in Parliament
, Baroness Andrews
stated that "We are not aware of the procedure referred to as 'partial-birth abortion' being used in Great Britain. It is the Royal College of Obstetricians and Gynaecologists
' (RCOG) belief that this method of abortion is never used as a primary or pro-active technique and is only ever likely to be performed in unforeseen circumstances in order to reduce maternal mortality
or severe morbidity."
Though the procedure has had a low rate of use, representing 0.17% (2,232 of 1,313,000) of all abortions in the United States in the year 2000, according to voluntary responses to an Alan Guttmacher Institute survey, it has developed into a focal point of the abortion debate
Abortion debate
The abortion debate refers to discussion and controversy surrounding the moral and legal status of abortion. The two main groups involved in the abortion debate are the self-described "pro-choice" movement and the "pro-life" movement...
. In the United States, intact dilation and extraction was made illegal in most circumstances by the Partial-Birth Abortion Ban Act
Partial-Birth Abortion Ban Act
The Partial-Birth Abortion Ban Act of 2003 is a United States law prohibiting a form of late-term abortion that the Act calls "partial-birth abortion", often referred to in medical literature as intact dilation and extraction...
, which the U.S. Supreme Court upheld in the case of Gonzales v. Carhart
Gonzales v. Carhart
Gonzales v. Carhart, 550 U.S. 124 , is a United States Supreme Court case that upheld the Partial-Birth Abortion Ban Act of 2003. The case reached the high court after U.S. Attorney General Alberto Gonzales appealed a ruling of the United States Court of Appeals for the Eighth Circuit in favor of...
.
Intact D&X surgery
Under the Intact D&X method, the largest part of the fetus (the head) is reduced in diameter to allow vaginal passage. According to the American Medical AssociationAmerican Medical Association
The American Medical Association , founded in 1847 and incorporated in 1897, is the largest association of medical doctors and medical students in the United States.-Scope and operations:...
, this procedure has four main elements. Usually, preliminary procedures are performed over a period of two to three days, to gradually dilate the cervix using laminaria
Laminaria
Laminaria is a genus of 31 species of brown algae , all sharing the common name "kelp". This economically important genus is characterized by long, leathery laminae and relatively large size. Some species are referred to by the common name Devil's apron, due to their shape, or sea colander, due to...
tents (sticks of seaweed which absorb fluid and swell). Sometimes drugs such as pitocin, a synthetic form of oxytocin, are used to induce labor. Once the cervix is sufficiently dilated, the doctor uses an ultrasound and forceps
Forceps
Forceps or forcipes are a handheld, hinged instrument used for grasping and holding objects. Forceps are used when fingers are too large to grasp small objects or when many objects need to be held at one time while the hands are used to perform a task. The term 'forceps' is used almost exclusively...
to grasp the fetus's
Fetus
A fetus is a developing mammal or other viviparous vertebrate after the embryonic stage and before birth.In humans, the fetal stage of prenatal development starts at the beginning of the 11th week in gestational age, which is the 9th week after fertilization.-Etymology and spelling variations:The...
leg. The fetus is turned to a breech position
Breech birth
A breech birth is the birth of a baby from a breech presentation. In the breech presentation the baby enters the birth canal with the buttocks or feet first as opposed to the normal head first presentation....
, if necessary, and the doctor pulls one or both legs out of the cervix, which some refer to as 'partial birth' of the fetus. The doctor subsequently extracts the rest of the fetus, leaving only the head still inside the uterus. An incision is made at the base of the skull, a blunt dissector (such as a Kelly clamp) is inserted into the incision and opened to widen the opening, and then a suction catheter
Catheter
In medicine, a catheter is a tube that can be inserted into a body cavity, duct, or vessel. Catheters thereby allow drainage, administration of fluids or gases, or access by surgical instruments. The process of inserting a catheter is catheterization...
is inserted into the opening. The brain
Human brain
The human brain has the same general structure as the brains of other mammals, but is over three times larger than the brain of a typical mammal with an equivalent body size. Estimates for the number of neurons in the human brain range from 80 to 120 billion...
is suctioned out, which causes the skull
Human skull
The human skull is a bony structure, skeleton, that is in the human head and which supports the structures of the face and forms a cavity for the brain.In humans, the adult skull is normally made up of 22 bones...
to collapse and allows the fetus to pass more easily through the cervix. The placenta
Placenta
The placenta is an organ that connects the developing fetus to the uterine wall to allow nutrient uptake, waste elimination, and gas exchange via the mother's blood supply. "True" placentas are a defining characteristic of eutherian or "placental" mammals, but are also found in some snakes and...
is removed and the uterine
Uterus
The uterus or womb is a major female hormone-responsive reproductive sex organ of most mammals including humans. One end, the cervix, opens into the vagina, while the other is connected to one or both fallopian tubes, depending on the species...
wall is vacuum aspirated
Suction-aspiration abortion
Vacuum or suction aspiration uses aspiration to remove uterine contents through the cervix. It may be used as a method of induced abortion, a therapeutic procedure used after miscarriage, or a procedure to obtain a sample for endometrial biopsy. The rate of infection is lower than any other...
using a cannula
Cannula
A cannula or canula is a tube that can be inserted into the body, often for the delivery or removal of fluid or for the gathering of data...
.
Partial-birth abortion
The term "partial-birth abortion" is primarily used in political discourse — chiefly regarding the legality of abortion in the United StatesAbortion in the United States
Abortion in the United States has been legal in every state since the United States Supreme Court decision in Roe v. Wade, on January 22, 1973...
. The term is not recognized as a medical term by the American Medical Association
American Medical Association
The American Medical Association , founded in 1847 and incorporated in 1897, is the largest association of medical doctors and medical students in the United States.-Scope and operations:...
nor the American College of Obstetricians and Gynecologists. This term was first suggested in 1995 by Congressman
Congressperson
A Member of Congress is a term used for a politician who has become qualified, appointed or elected, and inducted into some official body , typically to represent a particular constituency in a legislature...
Charles T. Canady
Charles T. Canady
Charles Terrance Canady is the Chief Justice of the Supreme Court of Florida and has been a Justice on the court since taking his seat in 2008...
, while developing the original proposed Partial-Birth Abortion Ban
Partial-Birth Abortion Ban Act of 1995
The Partial-Birth Abortion Ban Act was a bill introduced in the Congress of the United States in 1995 by Florida Representative Charles T. Canady which prohibited intact dilation and extraction, sometimes referred to as partial-birth abortion, which the Act described as "an abortion in which the...
. According to Keri Folmar, the lawyer responsible for the bill's language, the term was developed in early 1995 in a meeting among herself, Charles T. Canady, and National Right to Life Committee
National Right to Life Committee
The National Right to Life Committee is the oldest and largest pro-life organization in the United States with affiliates in all 50 states and over 3,000 local chapters nationwide. The group works through legislation and education to work against abortion, infanticide, euthanasia and assisted...
lobbyist Douglas Johnson. Canady could not find this particular abortion practice named in any medical textbook, and therefore he and his aides named it. "Partial-birth abortion" was first used in the media on 4 June 1995 in a Washington Times article covering the bill.
Miscarriage
Miscarriage or spontaneous abortion is the spontaneous end of a pregnancy at a stage where the embryo or fetus is incapable of surviving independently, generally defined in humans at prior to 20 weeks of gestation...
or feticide
Feticide
Feticide is an act that causes the death of a fetus. In a legal context, "fetal homicide" or "child destruction" refers to the deliberate or incidental killing of a fetus due to a criminal human act, such as a blow to the abdomen of a pregnant woman...
) that is developed enough to require dilation of the cervix for its extraction. Removing a dead fetus does not meet the federal legal definition of "partial-birth abortion," which specifies that partial live delivery must precede "the overt act, other than completion of delivery, that kills the partially delivered living fetus." Additionally, a doctor may extract a fetus past the navel and then cut through the neck of the fetus. This could fall within the terms of the statute, even though it would not result in an intact body and therefore would not be an intact dilation and extraction.
In addition to the federal ban, there have also been a number of state partial-birth abortion bans. There, courts have found that state legislation (rather than federal legislation) intended to ban "partial-birth abortions" could be interpreted to apply to some non-intact dilation and evacuation
Dilation and evacuation
Dilation and evacuation literally refers to the dilation of the cervix and surgical evacuation of the contents of the uterus...
(D&E) procedures. Though sometimes performed during the same developmental stage wherein most IDX procedures are done, non-intact D&E is a separate procedure.
There is debate over use of the term "partial-birth abortion". Those who oppose the term consider it a political term used to frame
Framing (social sciences)
A frame in social theory consists of a schema of interpretation — that is, a collection of anecdotes and stereotypes—that individuals rely on to understand and respond to events. In simpler terms, people build a series of mental filters through biological and cultural influences. They use these...
the argument in a way which is favorable to those who seek greater legal restrictions, or a total ban, on this or all abortion procedures, and have called the alleged political framing "partial truth abortion".
Controversy
IDX is a target of pro-life advocates who believe the procedure illustrates their contention that abortion, and especially late-term abortionLate-term abortion
Late termination of pregnancy or late-term abortions are abortions which are performed during a later stage of pregnancy. Late-term abortions are more controversial than abortion in general because the fetus is more developed and sometimes viable.-Definition:A late-term abortion often refers to an...
, is unjust. Critics consider the procedure to be infanticide
Infanticide
Infanticide or infant homicide is the killing of a human infant. Neonaticide, a killing within 24 hours of a baby's birth, is most commonly done by the mother.In many past societies, certain forms of infanticide were considered permissible...
, a position which many in the pro-life movement extend to cover all abortions. Some advocates, both for and against abortion rights, see the IDX issue as a central battleground in the wider abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
debate, representing an attempt to set a legal precedent so as to gradually erode access to all abortion methods.
Dr. Martin Haskell
Martin Haskell
William Mudd Martin Haskell is an American physician who, in 1992, described an abortion procedure known clinically as intact dilation and extraction , and popularly by the controversial term partial-birth abortion....
has called the IDX procedure "a quick, surgical outpatient method" for late second-trimester and early third-trimester abortions. The Partial-Birth Abortion Ban Act
Partial-Birth Abortion Ban Act
The Partial-Birth Abortion Ban Act of 2003 is a United States law prohibiting a form of late-term abortion that the Act calls "partial-birth abortion", often referred to in medical literature as intact dilation and extraction...
of 2003 describes it as "a gruesome and inhumane procedure that is never medically necessary."
According to a BBC
BBC
The British Broadcasting Corporation is a British public service broadcaster. Its headquarters is at Broadcasting House in the City of Westminster, London. It is the largest broadcaster in the world, with about 23,000 staff...
report about the U.S. Supreme Court's decision in Gonzales v. Carhart
Gonzales v. Carhart
Gonzales v. Carhart, 550 U.S. 124 , is a United States Supreme Court case that upheld the Partial-Birth Abortion Ban Act of 2003. The case reached the high court after U.S. Attorney General Alberto Gonzales appealed a ruling of the United States Court of Appeals for the Eighth Circuit in favor of...
, "government lawyers and others who favour the ban, have said there are alternative and more widely used procedures that are still legal - which involves dismembering the fetus in the uterus." An article in Harper's
Harper's Magazine
Harper's Magazine is a monthly magazine of literature, politics, culture, finance, and the arts, with a generally left-wing perspective. It is the second-oldest continuously published monthly magazine in the U.S. . The current editor is Ellen Rosenbush, who replaced Roger Hodge in January 2010...
magazine stated that, "Defending the Partial-Birth Abortion Ban... requires arguing to judges that pulling a fetus from a woman's body in dismembered pieces is legal, medically acceptable, and safe; but that pulling a fetus out intact, so that if the woman wishes the fetus can be wrapped in a blanket and handed to her, is appropriately punishable by a fine, or up to two years' imprisonment, or both." The U.S. Supreme Court has stated that intact D&X remains legal as long as there is first an "injection that kills the fetus."
There is also controversy about why this procedure is used. Although prominent defenders of the method asserted during 1995 and 1996 that it was used only or mostly in acute medical circumstances, lobbyist Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers
National Coalition of Abortion Providers
The National Coalition of Abortion Providers is trade association which represents independent abortion providers in the United States. Founded in 1990, it is based in Washington, D.C..-Leadership:...
(a trade association of abortion providers), told the New York Times (February 26, 1997): "In the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along."
Some prominent pro-choice advocates quickly defended the accuracy of Fitzsimmons's statements, whilst others condemned Fitzsimmons as self-serving.
In support of the Partial-Birth Abortion Ban Act, a nurse who witnessed three IDX procedures found them deeply disturbing, and described one performed on a 26½-week fetus
Fetus
A fetus is a developing mammal or other viviparous vertebrate after the embryonic stage and before birth.In humans, the fetal stage of prenatal development starts at the beginning of the 11th week in gestational age, which is the 9th week after fertilization.-Etymology and spelling variations:The...
with Down Syndrome
Down syndrome
Down syndrome, or Down's syndrome, trisomy 21, is a chromosomal condition caused by the presence of all or part of an extra 21st chromosome. It is named after John Langdon Down, the British physician who described the syndrome in 1866. The condition was clinically described earlier in the 19th...
in testimony before a Judiciary subcommittee of the US House of Representatives, where she stated "[t]he baby’s little fingers were clasping and unclasping, and his little feet were kicking," right before the procedure.
A journalist observed three IDX and two D&E procedures involving fetuses ranging from 19 to 23 weeks. She "watched for any signs of fetal distress, but ... [she] could see no response, no reflexive spasm, nothing. Whether this was a result of the anesthesia or an undeveloped fetal system for pain sensitivity, one thing was clear: There was no discernible response by the fetus."
Abortion provider Warren Hern
Warren Hern
Warren Martin Hern is an American physician best known for performing late-term abortions.. In 1973, he founded Boulder Abortion Clinic in Boulder, Colorado...
asserted in 2003 that "No peer-reviewed articles or case reports have ever been published describing anything such as 'partial-birth' abortion, 'Intact D&E' (for 'dilation and extraction'), or any of its synonyms." Therefore, Hern expressed uncertainty about what all of these terms mean. The U.S. Supreme Court held in Gonzales v. Carhart that these terms of the federal statute are not vague because the statute specifically detailed the procedure being banned: it specified anatomical landmarks past which the fetus must not be delivered, and criminalized such a procedure only if an "overt" fatal act is performed on the fetus after "partial delivery."
Federal law
Since 1995, led by RepublicansRepublican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
in Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
, the U.S. House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
and U.S. Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
have moved several times to pass measures banning the procedure. Congress passed two such measures by wide margins during Bill Clinton's presidency
Presidency of Bill Clinton
The United States Presidency of Bill Clinton, also known as the Clinton Administration, was the executive branch of the federal government of the United States from January 20, 1993 to January 20, 2001. Clinton was the first Democratic president since Franklin D. Roosevelt to win a second full term...
, but Clinton veto
Veto
A veto, Latin for "I forbid", is the power of an officer of the state to unilaterally stop an official action, especially enactment of a piece of legislation...
ed those bills in April 1996 and October 1997 on the grounds that they did not include health exceptions. Subsequent congressional attempts at overriding the veto were unsuccessful. Doctors "have been successfully sued for failure to refer patients for late-term abortions in cases of fetal abnormalities."
A major part of the legal battle over banning the procedure relates to health exceptions, which would permit the procedure in special circumstances. The 1973 Supreme Court decision Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
, which declared many state-level abortion restrictions unconstitutional, allowed states to ban abortions of post-viable fetuses unless an abortion was "necessary to preserve the life or health of the mother." The companion ruling, Doe v. Bolton
Doe v. Bolton
Doe v. Bolton, 410 U.S. 179 , was a landmark decision of the United States Supreme Court overturning the abortion law of Georgia. The Supreme Court's decision was released on January 22, 1973, the same day as the decision in the better-known case of Roe v. Wade, 410 U.S...
, upheld against a vagueness challenge a state law that defined health to include mental as well as physical health. The Court has never explicitly held, as a matter of constitutional law, that states have to allow abortions of post-viable fetuses if doing so is necessary for the woman's mental health, but many read Doe as implying as much. The concern that the health exception can be read so liberally partly explains why supporters of the Partial-Birth Abortion Ban Act did not want to include one.
The Act includes an exception for the life of the woman, but explicitly not for non-life-threatening health issues; opponents believe that this exception is too narrow and have mounted numerous legal challenges. Congress asserted that the procedure is never necessary for maternal health.
In 2003, the Partial-Birth Abortion Ban Act
Partial-Birth Abortion Ban Act
The Partial-Birth Abortion Ban Act of 2003 is a United States law prohibiting a form of late-term abortion that the Act calls "partial-birth abortion", often referred to in medical literature as intact dilation and extraction...
(H.R. 760, S. 3) was signed into law; the House passed it on October 2 with a vote of 281-142, the Senate passed it on October 21 with a vote of 64-34, and President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
signed it into law on November 5.
Beginning in early 2004, the Planned Parenthood Federation of America, the National Abortion Federation
National Abortion Federation
The National Abortion Federation is an organization of abortion providers. Though originally a U.S. group, NAF has expanded to include practitioners in Canada and Australia as well as many European countries and Mexico...
, and abortion doctors in Nebraska challenged the ban in federal district courts
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
in the Northern District of California
United States District Court for the Northern District of California
The United States District Court for the Northern District of California is the federal United States district court whose jurisdiction comprises following counties of California: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San...
, Southern District of New York
United States District Court for the Southern District of New York
The United States District Court for the Southern District of New York is a federal district court. Appeals from the Southern District of New York are taken to the United States Court of Appeals for the Second Circuit The United States District Court for the Southern District of New York (in case...
, and District of Nebraska
United States District Court for the District of Nebraska
The United States District Court for the District of Nebraska is the Federal district court whose jurisdiction is the state of Nebraska. Court offices are in Omaha, Lincoln, and North Platte....
. All three district courts ruled the ban unconstitutional that same year. Their respective federal courts of appeals
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
—the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
, Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
, and Eighth Circuit
United States Court of Appeals for the Eighth Circuit
The United States Court of Appeals for the Eighth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Arkansas* Western District of Arkansas...
, respectively—affirmed these rulings on appeal.
The three cases were all appealed to the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
, and were consolidated into the case Gonzales v. Carhart
Gonzales v. Carhart
Gonzales v. Carhart, 550 U.S. 124 , is a United States Supreme Court case that upheld the Partial-Birth Abortion Ban Act of 2003. The case reached the high court after U.S. Attorney General Alberto Gonzales appealed a ruling of the United States Court of Appeals for the Eighth Circuit in favor of...
. On April 18, 2007, the Supreme Court voted to uphold the Partial-Birth Abortion Ban Act
Partial-Birth Abortion Ban Act
The Partial-Birth Abortion Ban Act of 2003 is a United States law prohibiting a form of late-term abortion that the Act calls "partial-birth abortion", often referred to in medical literature as intact dilation and extraction...
by a decision of 5-4. Justice Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
wrote for the majority and was joined by Justices Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
, Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
, and Chief Justice Roberts. A dissenting opinion was written by Justice Ginsburg
Ruth Bader Ginsburg
Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
and joined by Justices Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
, Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
and Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
.
State law
Many states have bans on late-term abortions which apply to the IDX procedure if it is performed after viability.Many states have also passed bans specifically on the IDX procedure. The first was Ohio, which in 1995 enacted a law that referred to the procedure as dilation and extraction. In 1997, the United States Court of Appeals for the Sixth Circuit found the law unconstitutional on the grounds that it placed a substantial and unconstitutional obstacle in the path of women seeking pre-viability abortions in the second trimester.
Between 1995 and 2000, 28 more states passed Partial-Birth Abortion bans, all similar to the proposed federal bans and all lacking an exemption for the health of the woman. Many of these state laws faced legal challenges, with Nebraska's the first to reach decision in Stenberg v. Carhart
Stenberg v. Carhart
Stenberg v. Carhart, 530 U.S. 914 , is a case heard by the Supreme Court of the United States dealing with a Nebraska law which made performing partial-birth abortion illegal, except where necessary to save the life of the mother. Nebraska physicians who performed the procedure contrary to the law...
. The Federal District Court held Nebraska's statute unconstitutional on two counts. One being the bill's language was too broad, potentially rendering a range of abortion procedures illegal, and thus, creating an undue burden on a woman's ability to choose. The other count was the bill failed to provide a necessary exception for the health of the woman. The decision was appealed to and affirmed by both the Eighth Circuit and the Supreme Court on June 2000, thus resolving the legal challenges to similar state bans nationwide.
Since the Stenberg v. Carhart decision, Virginia, Michigan, and Utah have adopted legislation very similar to the Nebraska law overturned as unconstitutional. The Michigan law were similarly struck down --- for broadness and failure to provide a health exemption. Utah's law remains on the books, pending trial, but is unenforceable under a court-ordered preliminary injunction. Virginia's Law was initially ruled invalid, but was reversed and remanded to the District Court in the wake of the Gonzales v. Carhart decision, where it was upheld as constitutional. This is despite the fact the Virginia law criminalizes abortions for accidental D & X procedures, as well as intentional D & X.
In 2000 Ohio introduced another "partial-birth abortion" ban. The law differed from previous attempts at the ban in that it specifically excluded D&E procedures, while also providing a narrow health exception. This law was upheld on appeal to the Sixth Circuit in 2003 on the grounds that "it permitted the partial birth procedure when necessary to prevent significant health risks."
In 2003 the Michigan Senate introduced Senate Bill No. 395. The bill, which would change the legal definition of birth, would in effect ban partial birth abortions. The definition of birth as defined in the bill was that once any part of the body had passed beyond the vaginal plane of introitus it is considered a birth. The bill included an exemption for the mother's health. The bill was passed by both the Senate and House of Representatives but was vetoed by governor Jennifer Granholm
Jennifer Granholm
Jennifer Mulhern Granholm is a Canadian-born American politician, educator, and author who served as Attorney General and 47th Governor of the U.S. state of Michigan. A member of the Democratic Party, Granholm became Michigan's first female governor on January 1, 2003, when she succeeded Governor...
.
In other countries
Questioned about United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
government policy on the issue in Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
, Baroness Andrews
Kay Andrews, Baroness Andrews
Kay Andrews, Baroness Andrews OBE is a British Labour politician.Andrews worked as a Parliamentary Clerk from 1970-85. She then became a policy adviser to Neil Kinnock in his office as Leader of the Opposition 1985-92...
stated that "We are not aware of the procedure referred to as 'partial-birth abortion' being used in Great Britain. It is the Royal College of Obstetricians and Gynaecologists
Royal College of Obstetricians and Gynaecologists
The Royal College of Obstetricians and Gynaecologists is a professional association based in the UK. Its members, including people with and without medical degrees, work in the field of obstetrics and gynaecology, that is, pregnancy, childbirth, and female sexual and reproductive health...
' (RCOG) belief that this method of abortion is never used as a primary or pro-active technique and is only ever likely to be performed in unforeseen circumstances in order to reduce maternal mortality
Death
Death is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....
or severe morbidity."
Legal documents
- Appeals court upholds Ohio "partial-birth abortion" law (AMANews article) : 19 January 2004.
- Appeals Court decision in Haskell v. Taft, upholding Ohio PBA Ban : (decided 17 December 2003) Includes description of the procedure, Decision of the Court, and Dissenting opinion
- Partial Birth Abortion Ban Act of 2003, signed by President Bush in March, 2003
- Ohio law banning "partial birth feticide" : enacted 18 August 2000.
- Stenberg v. Carhart Decision voiding Nebraska's PBA ban, circa 2000
- HR 1833, vetoed by President Clinton in 1996
- Congressional Testimony of Brenda Pratt Shafer, RN, March 21, 1996
Commentary
- Ban Wagons - Reason Magazine article about the naming of "partial birth abortion" (supporting legality of the procedure)
- About.com's Pros & Cons of Partial Birth Abortion (neutral about the legality of the procedure)
- The Myth of Partial Birth Abortion, by Don Sloan, MD (supporting the legality of the procedure)
- Partial-Birth Abortion - A Chink In The Pro-Abortion Armor (opposing the legality of the procedure)
- The "Partial-Birth" Myth - No, it's not a birth (supporting the legality of the procedure)
- Gina Gonzales as told to Barry Yeoman, "I Had An Abortion When I Was Six Months Pregnant," Glamour (supporting the legality of the procedure)
Other
- Martin Haskell's 1992 monograph, which called the procedure "Dilation and Extraction"
- ReligiousTolerance.org: D&X Procedure (aka Partial Birth Abortion) - All sides
- Presbyterians pro-life: A Pediatrician Looks at Babies Late in Pregnancy and Late Term Abortion
- A doctor's right to choose - Salon.comSalon.comSalon.com, part of Salon Media Group , often just called Salon, is an online liberal magazine, with content updated each weekday. Salon was founded by David Talbot and launched on November 20, 1995. It was the internet's first online-only commercial publication. The magazine focuses on U.S...
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