Try reading last week's Supreme Court abortion opinions, all the way through -- both Justice Anthony Kennedy's majority and Justice Ruth Ginsburg's dissent. The formal name of the case is Gonzales, Attorney General, v. Carhart et al; the words "Partial-Birth Abortion" appear in the first sentence. You'll hit the following passage before the fifth page:
The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman.
Those sentences are not a citation from a right-to-life pamphlet. They are those of Justice Kennedy, and in them he is describing dilation and evacuation (D&E), the standard abortion method used in this country for procedures after the fourteenth week of pregnancy. He is not talking about the method whose prohibition he's about to uphold; he'll come to that, momentarily, and then he'll spend much of the next 30 pages distinguishing between what remains legal, under Gonzales v. Carhart, and what does not.
The Gonzales ruling, a 5-4 finding that the federal Partial-Birth Abortion Ban Act is constitutional, will be squinted over in coming months like a message in code, as politicians and litigators and legislation-writing lobbyists try to figure out what Kennedy is trying to tell them -- just how much the scales tipped last week. That the scales did tip is not in question. Whatever this newly realigned court does when next asked to examine an abortion law, it will be giving more weight to fetal protection, and less to the idea that readily available abortion is a health and privacy right of women, than has any Supreme Court in the last three decades.
In the meantime, though, there may be an immediate impact on what is available to women and what is not -- and the nature of that impact will rest with individual doctors and prosecutors. In order to understand why, you have to understand what the ban prohibits. This requires learning certain details most people do not really want to know about abortion after the first trimester -- which is exactly what right-to-life people in Washington D.C. had in mind when they sat down 12 years ago, came up with the term "partial-birth abortion," and wrote the first draft of the legislation the Supreme Court just upheld.
To clarify a common misconception, the Partial-Birth Abortion Ban does not criminalize abortion late in pregnancy. The pregnancy could be 15 weeks along or 32 weeks along; in terms of the ban, it doesn't matter. The only thing it criminalizes -- and this is important, as it's a first in Supreme Court abortion jurisprudence -- is a method. A physician who performs an abortion the ban-proscribed way, unless he can prove he is doing it to save the woman's life, is now subject to criminal prosecution and up to two years in prison. A physician who performs abortions other ways is not.
The newly criminalized procedure was named "intact dilation and extraction," or D&X, by the physician who first wrote up a technique for performing abortions so that the fetuses came out whole. The physician was an Ohio clinic owner named Martin Haskell, and at a 1992 medical symposium, he presented a paper on the procedure he was using for women whose pregnancies were too advanced for the standard first-trimester method, vacuum aspiration. For second and third trimester abortions, Haskell had figured out how to dilate the cervix wide, use forceps to pull the fetus most of the way out, and then, with the legs and trunk out but the head still stuck inside the cervix, collapse the skull by piercing it and emptying it with a catheter.
Right-to-life people got hold of Haskell's paper, and they understood -- probably underestimated, in fact -- the effect this surgical description was likely to have on the general public. (One of the earliest anti-D&X laws, a state bill in Ohio, called it "brain suction abortion.") Haskell hadn't understood, of course, the kind of strategic weapon his medical paper was destined to become; like the small number of other American doctors who occasionally did intact abortions, he considered his technique an improvement in safe and humane abortion practice. This is because the standard post-15-week method requires pulling parts off a fetus inside the woman's uterus and removing them one at a time. That's called dilation and evacuation (D&E), and it generally causes more bleeding than D&X, subjects the woman's uterus to more sharp instrument passes, and ultimately produces -- there is no way to write this without causing distress -- a surgical pan of dismembered parts. D&X, on the other hand, produces an intact body that can be wrapped in a blanket and handed to the woman, if she wishes, for a period of grieving inside the clinic. There are two other far less frequently used post-first-trimester abortion methods: induction, which forces a woman into miscarriage to deliver a dead fetus; and hysterotomy, basically a Cesarean for a fetus not developed enough to survive.
These non-D&X methods remain legal under Gonzales, Kennedy declared. And for that matter, he wrote, intact extraction is still legal too, as long as a feticide is injected into the uterus first, so that what comes out is already dead. The new crime, as the ban words it, is "performing an overt act that the person knows will kill the partially delivered living fetus." The ban itself specifies what "partially delivered" means, Kennedy wrote -- the whole head out, if it emerges head first; or out up to the navel, if it emerges feet first. This is the "bright line," to use the legal term, that's meant to clarify what is now criminal and why: You can kill it inside the uterus, because that's still protected by the constitutional right to abortion. But once it starts coming out, you're in legal trouble if you perform any "overt act" that might be construed as ending its life.
So this poses a dilemma for any physician whose practice includes abortions beyond the beginning of the second trimester. Those procedures account for 5 percent of the 1.2 million abortions performed annually, or around 60,000 per year. Second-trimester abortions are performed for lots of reasons: Teenagers in denial, menopausal women who didn't know right away that they were pregnant, late fetal anomaly diagnoses, women unable to raise the first-trimester abortion fee in time. And although nobody has accurate method-by-method statistics, since there is no requirement to collect data that specific, at most a few thousand every year may have been done using intact extraction.
But the ban on D&X raises serious questions that will have to be answered now by physicians themselves, and by the individual prosecutors who must decide whether to make alleged Partial Birth Abortion Ban violations a part of their caseloads. If a doctor is performing a standard D&E, for example, and the fetus turns out to be smaller than expected and slides whole into the vaginal canal, does that doctor now need to dismember it quickly, before it starts coming out, or else retain legal counsel as soon as the procedure is over? What if there's an extracted D&E part some prosecutor decides to characterize as a "living fetus" because the part, as they occasionally do, contained upon removal a still-beating heart? The ban says "deliberately and intentionally," so there's one clear line of defense, but what will the doctor have to do to prove there was neither deliberation nor intent?
When abortion-rights attorneys began mounting their challenges to the Partial-Birth Abortion Ban, one of their primary arguments was that prohibiting "partial-birth abortion," the way Congress had defined it, would effectively prohibit all methods that require pulling the fetus through the cervix. If enough doctors worried they might end up facing prosecution every time they set out to do a D&E, the argument went, then the United States would effectively be turned into a country in which legal abortion is no longer available much past the first trimester, whether it is constitutionally protected or not. Kennedy's answer was, basically: You haven't proved this will happen, so the Court doesn't buy it, and the prohibition stands. Or to put it another way: There might be some hard-charging prosecutors out there, in Pennsylvania or another state in which later procedures remain available despite well-organized opposition to abortion, and so there might be another case for us to look at once a few doctors have been arrested and other doctors have reacted by closing down their practices. We'll just have to wait and see.
Kennedy has written ardently about abortion procedure once before for the Court, in his 2000 opinion in the predecessor to this case, Stenberg v. Carhart. In that case, the Supreme Court considered a Nebraska law that was similar to the federal Partial Birth Abortion Ban -- and overturned the law as unconstitutional. But Sandra Day O'Connor was on the court then, not yet replaced by Samuel Alito, and Kennedy was writing a dissent. As he expressed his obvious horror at intact D&X, he was part of a four-justice minority. Not this time. In his Gonzales majority opinion, Kennedy used the phrase "killed just inches before completion of the birth process." He wrote that intact D&X "perverts a process during which life is brought into this world."
What other abortion methods is this 5-4 court now willing to characterize, if given the chance, as impermissible perversions of the birth process? A justice who writes "a leg might be ripped off the fetus as it is pulled through the cervix" may well be inviting a new effort at restricting by procedure -- a state or federal ban on D&E, perhaps. He may be previewing the logic the court will use the next time around, as it upholds a diminished form of constitutional right to abortion while giving states more power to curtail its availability through restrictive laws. And he is surely doing what abortion opponents had hoped the rest of the country would, when they sent the Partial Birth Abortion Ban to Congress: He has looked up close at some of the ways abortion brings an end to fetal life, and found that none of the decades-old principles for which Roe v. Wade was supposed to stand -- not choice, not autonomy, not pregnant women's health -- can undo the image of a single dismembered leg.
