Last week, the New England Journal of Medicine went into mourning over the Supreme Court’s decision in April to uphold a federal ban on “partial-birth” abortion. Four authors weighed in, none of them happily. They scolded the court for joining Congress in “practicing medicine without a license.” They worried that the decision has created an “intimidating environment” for late-term abortions generally and will have a “chilling effect” on doctors’ decisions about performing the procedures.
Yet in his majority opinion upholding the federal ban, Justice Anthony Kennedy emphasized that the federal ban only prohibits a doctor from intentionally performing a so-called “intact dilation and extraction” in which the fetus is extracted whole. And according to the estimate most often cited, including by the recent New England Journal articles, the court’s decision thus directly involves only a tiny percentage of the 1.3 million abortions that take place in the United States each year—.17 percent, or 2,200, performed annually by only 30 doctors. “The Act excludes most D&Es in which the fetus is removed in pieces, not intact,” Kennedy wrote. He made a similar point to support his argument that the law doesn’t impose an undue burden on women: “Alternatives are available to the procedure. As we have noted, the Act does not proscribe D&E.”
So, if we’re only talking about 30 doctors and a tiny percentage of abortions overall, and not second-trimester abortions in general, what are the doctors so worried about? Why the New England Journal’s hue and cry? Maybe it’s an overreaction: Doctors never like being interfered with. (What profession does?) And as supporters of abortion rights, these particular authors may be especially outraged about a decision that curtails their rights, even if its practical reach is limited. Perhaps the objections here are of the “what next?” variety, the fear that the current ban is merely the thin edge of a wedge.
But upon further scrutiny, these dismissals fall away. This ban comes with harsh, even criminal, penalties, and the lines between different kinds of late-term abortion procedures are inevitably blurry. So, doctors can be forgiven and then some for worrying about broader-brush applications by zealous prosecutors. Kennedy’s reassurances (if that’s what he intended) don’t add up to much.
Start with the blurry lines. Kennedy referred to an “intact D&E,” although doctors usually call the procedure Congress outlawed a “D&X” (or dilation and extraction). If that’s not confusing enough, the law itself, unhelpfully, used neither term. So, doctors interpreting the decision begin with a terminology headache.
Also, in saying that the ban excludes “most D&Es in which the fetus is removed in pieces,” Kennedy implied that there are some classes of nonintact D&Es to which it does apply. Figuring out which is which involves delving into the awful particulars of collapsed skulls and dismembered limbs that made this legislation such a boon to abortion opponents in the first place. I’m not even going to try. The bottom line is that it’s the rare doctor who will want to risk parsing Kennedy wrongly by performing a procedure that seems to approach a legal gray area. Especially because the penalty for error is two years in prison, a fine of up to $250,000, and exposure to civil damages.
In light of all this, the oft-quoted claim that the law directly affects only .17 percent of abortions may be a serious undercount. To begin with, the estimate is a best guess: It comes from the Guttmacher Institute, a research organization, rather than from an official statistics-gathering government agency. It’s also a few years old, and in the meantime, medical schools have apparently been teaching D&X procedures more often to more students, not less (though Congress refused to acknowledge this in the “findings of fact” it made in enacting the ban). Add in the defensive stance of a lot of doctors who don’t want to tiptoe anywhere close to the line of illegality, and you come up with “hundreds” who will change their practices in response to this Supreme Court decision, says Talcott Camp, a lawyer for the ACLU.
What will these doctors do differently? A variety of subtle things, Camp says, and just one obvious one: They’ll inject the fetus with medicine to stop its heart before the abortion takes place. Doctors will practice defensively, which they resent, because they think they should be thinking about their patients and not their legal exposure. Will they perform fewer late-term abortions? Some insist not. “I don’t think this is going to change the total number of abortion procedures done in the U.S.,” says Michael F. Greene, a professor of obstetrics of Harvard and the author of one of the New England Journal articles about the Supreme Court’s decision. On the other hand, it’s not hard to imagine some doctors backing away from late-term D&Es, or fewer medical students going on to perform them, leaving women with fewer places to go for a procedure that’s already relatively hard to get.
Maybe that’s what Congress, and Kennedy’s majority, had in mind all along. But as Justice Ruth Bader Ginsburg pointed out in her dissent, “the law saves not a single fetus from destruction, for it targets only a method of performing abortion” (her italics). Because neither the law nor the court was perfectly clear about the parameters of that method, it’s doctors who are left to bear the risk of this confusion or reduce their patients’ options by playing it extra safe.
The best way to test the court’s decision—and perhaps to prevent it from having a wider than necessary application—would be for a doctor to perform a D&X, or a nonintact D&E that’s right up to the legal line, in a situation in which she believes that to be in her patient’s best interests. Then she could be charged with violating the ban and try to defend herself, and eventually, a court would have to wade into the territory left unsettled by the Supreme Court’s decision. Kennedy left the door open a crack to just such a challenge. And the law itself makes an exception when the woman’s life—though not her health—is at risk. One of the New England Journal of Medicine authors, George Annas, proposes that brave doctors could act as “conscientious objectors” if breaking the law is indeed what medical ethics demands.
You can imagine the questions a prosecutor would ask that doctor: “Were you sure that the woman’s life rather than just her health was at stake? How sure? Did you perform the D&X that Congress banned, or something more like a legal D&E?” Maybe a real doctor will put him- or herself through such an interrogation, in the interest of testing the outer limits of this ban. But that’s expecting a lot. How to put your personal liberty at risk isn’t a class they teach in med school.