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The nine member US Supreme Court ruled five to four last week to ban the “partial birth abortion” procedure in the United States. The court upheld a federal law banning the procedure that was passed by Congress in 2003. The law had been challenged in the courts for lacking an exception to protect women's health, not just their lives.
Many commentators called the decision the most important ruling on abortion in 30 years.
The day after the Supreme Court ruling, two Democrats, Senator Barbara Boxer of California and Representative Jerrold Nadler of New York, introduced bills in the Senate and House of Representatives that would prevent government from interfering with a woman's right to bear a child or end a pregnancy. Nadler said, “We can no longer rely on the Supreme Court to protect a woman's constitutional right to choose.”
This week the New England Journal of Medicine joined the debate. Jeffrey Drazen, the journal's editor in chief, said in an early release editorial that the Supreme Court “was practising medicine without a licence.”
In another article, Michael Greene, director of obstetrics at Massachusetts General Hospital, wrote that US doctors lacked confidence in the judicial system and might avoid carrying out surgical abortions in the second trimester even when the mother's life is in danger. The court's decision was part of government restrictions on access to contraception and for coping with dangerous or unwanted pregnancies.
Abortion will be an important topic in next year's presidential election. Potential Democratic candidates criticised the court's decision and potential Republican candidates approved it, including former mayor of New York Rudy Giuliani, despite the fact that he has said he supports abortion rights.
Seven years ago, the Supreme Court overturned a state law that banned “partial birth abortion” because it did not have an exception to protect women's health (BMJ 2004:328:1398, doi: 10.1136/bmj.328.7453.1398-d), and it has several times struck down abortion laws that did not have a health exception. The federal law states that the procedure is never medically necessary and the Supreme Court upheld the federal law despite its previous decisions requiring a protection for women's health.
The law defines a partial birth abortion as a procedure in which the doctor “deliberately and intentionally vaginally delivers a living fetus until, in the case of a headfirst presentation, the entire fetal head is outside the body of the mother, or, in the case of a breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act (usually the puncturing of the back of the child's skull and removing the baby's brains) that the person knows will kill the partially delivered living fetus.” The number of such abortions carried out each year in the US is thought to be between 2200 and 5000. They are most often performed in the second trimester.
The American College of Obstetricians and Gynecologists said that the procedure might be the safest but its view had been disregarded. Dr Douglas Laube, president of the college, said that the decision “leaves no doubt that women's health in America is perceived as being of little consequence.”
The college, Planned Parenthood, the American Civil Liberties Union, the Center for Reproductive Rights, the National Abortion Federation, and many other organisations criticised the court's decision. They said it was a step toward prohibiting abortion. Pro-life, anti-abortion groups applauded the decision.
The New York Times made it lead story (www.nytimes.com, 19 Apr, “In reversal of course, justices, 5-4, back ban on abortion method”) and in its lead editorial (p A26) said the decision “severely eroded the constitutional respect and protection accorded to women and the personal decisions they make about pregnancy and childbirth.” Several commentators said that the court had changed from having concern for a woman's health to having concern about the fetus. They also noted a paternalistic tone in the court's ruling.
The current court is more conservative because of George Bush's appointment of Samuel Alito as an associate justice, replacing the more liberal Sandra Day O'Connor, who had been the “swing vote” in some 5-4 decisions on abortion rights.
Doctors usually refer to the procedure of partial birth abortion as intact dilatation and extraction. The alternative procedure, which is not prohibited, is to dismember the fetus within the uterus and extract it. Partial birth abortion or intact dilatation and evacuation is allowed when the fetus is dead. Killing the fetus by injection and inducing labour is not often used in the US and is thought to be less safe.
Commenting on the law as it now stands after the Supreme Court decision, David Grimes, former head of abortion surveillance for the Centers for Disease Control and Prevention, told the BMJ, “The law is crudely crafted, difficult to interpret, and hopelessly vague. It doesn't mention gestational age.” It also refers to intention rather than what may happen during a procedure. Doctors who violate the law may be jailed for up to two years; women will not be punished.
Dr Grimes said that he had personally used the procedure to save a woman's life. He feared the ruling would lead to increased restrictions on abortion at a state by state level. State legislators have already begun to propose local laws.
Justice Ruth Bader Ginsburg, the only woman on the court, said in the dissenting opinion that the ruling does not prevent a single abortion. It merely outlaws a procedure. Antiabortion activists say that they will seek restrictions on other procedures for abortion and also seek to impose other restrictions, such as counselling before abortion, ultrasound imaging, and longer waiting times.
About 1.3 million abortions are carried out in the US each year, almost 90% in the first trimester by vacuum aspiration. The number of partial birth abortions is unclear because of problems with definitions and the collection of statistics. Estimates are less than 1%, perhaps as low as 0.2%.
The full ruling is available at www.supremecourtus.gov/opinions/06pdf/05-380.pdf.