Partial-birth abortion ban expected to pass

Legal challenges expected

In a matter of weeks, the U.S. Congress is expected to enact a federal ban on a pregnancy termination procedure known as partial-birth abortion. President Bush has indicated he will sign the bill into law.

But the end of the political debate on the topic will only be the beginning of the struggle for abortion providers, women’s health advocates, and right-to-life organizations. The new law is open to various interpretations and will likely face immediate court challenges, say experts.

"I don’t know what the impact will be," says Warren Hern, MD, a Boulder, CO, gynecologist and medical director of the Boulder Abortion Clinic, PC. "The legislation is set up so that you could use the language to outlaw any abortion — particularly any second-trimester abortion by any technique. But I think that’s the point of the legislation, anyway."

According to the legislation currently under consideration, a "partial-birth abortion" is a procedure in which the physician performing the abortion:

  • deliberately and intentionally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the mother’s body, or, in the case of a breech presentation, any part of the fetal trunk past the navel is outside the mother’s body; and
  • performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.

The bill makes it a federal crime, punishable by up to two years in prison, to perform such a procedure. It also allows the father of the fetus, if married to the mother at the time the procedure is performed, and the maternal grandparents of the fetus, if the woman is younger than 18 years of age, to sue the provider for damages in civil court.

The wording of the legislation is vague and may be construed to cover any number of procedures now in use, says Hern.

"Partial-birth abortion is a propaganda term," he says. "It has never been described in the medical literature and no one has ever seen one. When doctors read this legislation, they can’t tell whether they will be prosecuted for doing an abortion, so they just won’t do it. They will go do something else."

Confusion over terminology

According to the American College of Obstetricians and Gynecologists (ACOG), the procedure the legislation seeks to ban is clinically known as "intact dilatation and extraction" (intact D&X).

According to a policy statement1 issued by ACOG in 1997 and revised in 2000, the procedure contains the following four elements:

  • deliberate dilatation of the cervix, usually over a sequence of days;
  • instrumental conversion of the fetus to a footling breech;
  • breech extraction of the body, excepting the head;
  • partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.

Because all of these elements are part of established obstetric techniques, the policy statement emphasizes that all four elements must be performed in sequence; otherwise, the procedure is not considered to be an intact D&X.

Although the ACOG’s consensus is that there is never any situation where intact D&X would be the only appropriate termination procedure to use, there are situations in which the clinician might determine it to be the most appropriate way, given the specific set of circumstances, to preserve the life and health of the mother.

As examples of situations where the procedure might be used, an ACOG fact sheet on intact D&X lists the following:

  • The evacuation of a severely infected pregnancy with maternal sepsis where hysterectomy (incision of the uterus) could lead to peritonitis, shock, and even death.
  • The completion of a spontaneous abortion of a living 16-week fetus with known hydrocephalus, presenting with the body delivered and the head entrapped by the woman’s cervix. The physician may believe that decompression of the fetal head, to obviate the risk of extensive cervical laceration or a ruptured uterus in the woman.

Although the ACOG statement acknowledges that the procedure is controversial among providers, the organization does not support a ban on the procedure.

"The potential exists that legislation prohibiting specific medical practices, such as intact D&X may outlaw techniques that are critical to the lives and health of American women," the policy statement reads. "The intervention of legislative bodies into medical decision making is inappropriate, ill-advised, and dangerous."

What does the law prohibit?

Another stumbling block for providers, says Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers (NCAP) in Alexandria, VA, is that there is still a great deal of confusion about what exactly intact D&X is and what the proposed law prohibits.

The legislation discusses partial delivery of a living fetus, but does not specify a gestational age. Many providers say they perform the procedure intact D&X, but do not do so on a living fetus. The fetus is killed prior to the procedure by administering shot of digoxin into the fetal heart while it still is completely in utero, says Fitzsimmons.

And most providers who say they perform the procedure perform it after the gestational age of 16 weeks, though this is not mentioned in the proposed legislation.

No procedure known as intact D&X has ever been described in the medical literature, in medical textbooks, or been the subject of study, adds Hern, who has written textbooks on abortion procedures.

"ACOG has given the definition, but you ask them where they got it and they can’t tell you because it’s folklore," he says. "There are no case reports. There are no comparative studies. They say that this might be the safest way to do a late abortion in some situations, but how do they know that?"

And no one knows exactly how many of these procedures are performed each year. A report released this year, by the Alan Guttmacher Institute in New York,2 surveyed abortion providers about the number and types of procedures performed. According to the survey, a procedure known as "intact dilation and extraction" accounted for 0.17% of all abortions in the year 2000 — about 2,200 procedures.

The Guttmacher report used the ACOG definition for intact D&X, but gave the procedure a different name, says Fitzsimmons. And the survey relied on self-reported statistics, which may not be accurate.

"I have only known of one provider who performs the procedure as described in the legislation on a living fetus, and I am not sure that he is still doing so at this point," he adds.

At its annual meeting, NCAP is planning to have legal advisors come in to counsel providers about what the law will and will not permit, Fitzimmons notes.

"We are very concerned. But this is likely to become the law, and then it will be up to the court challenges to decide what will happen," he states.

The proposed legislation is really not so much about outlawing one procedure, as it is a political attempt by anti-abortion lawmakers to intimidate abortion providers, frightening them away from providing any type of procedure, Hern and others allege.

During debate of the legislation in front of the House Judiciary Committee, Rep. Jerrold Nadler (D-NY) emphasized that, intact D&X was only one type of procedure used to perform abortions in the second and third trimester, and lawmakers could specifically ban late-pregnancy abortions if they sought to do so.3

"We can describe in gruesome terms the actual procedure by which a fetus is aborted, and it sounds terrible, so let’s. Because it sounds terrible, let’s outlaw it. The fact is, and the opponents of abortion say this constantly too, you can probably describe other abortion procedures and make them sound terrible," Nadler said. "But the fact is that if they’re pre-viability, then you can’t legislate against them, period. The Supreme Court says so. If they’re post-viability you can legislate against them as long as you put in a life and health exception for the mother. So if you want to be honest, you put in a late-term abortion bill that would pass and would pass constitutional muster. If you want to be dishonest and just play to the political galleries but accomplish nothing, then you put in this bill, which is unconstitutional on its face."

Honest disclosure needed

Since the political debate over partial-birth abortions began in 1997, the pro-choice movement and abortion providers have not participated in an honest, public discussion about abortion and the realities of the different procedures used, and that needs to happen, says Fitzsimmons.

"We, as a movement, don’t talk about abortion. We have organizations that can’t even use the word abortion. But we need to because that’s the big elephant sitting in the middle of the room," he states. "We need to talk about abortion — the good and the bad — and we need to talk about it using the terms the women use. Women don’t call up our clinics and say, I can’t have this fetus.’ Or, I want to exercise my constitutional rights today.’"

Providers’ reluctance to enter into public discussions about abortion inadvertently leave women hanging. They hear messages from anti-choice advocates about how wrong the procedures are, but there is largely silence and secrecy on the part of the pro-choice movement.

"The message they receive is, Hey, it’s your choice’ but after that you’re on your own," he says. "What we are left with is all this screaming and yelling and dueling bumper stickers, and women are getting lost in the middle."


Ron Fitzsimmons, NCAP, 908 King St., Suite 400 W, Alexandria, VA 22314.

Warren Hern, MD, Boulder Abortion Clinic, 1130 Alpine Ave., Boulder, CO 80304.


1. ACOG Statement of Policy. Statement on intact dilatation and extraction. Issued by the ACOG Executive Board. Jan. 12, 1997.

2. Finer LB, Henshaw SK. Abortion incidence and services in the United States in 2000. Perspect Sex Reprod Health 2003:35-6-15.

3. Testimony of Rep. Jerrold Nadler before the House Judiciary Committee on Wednesday, March 26, 2003. Accessed on-line at: