By Priscilla Smith, JD
Reprinted from the Journal of Women's Health and Law (1999-2000) 1:2
In this article, the author reveals the deceptive nature of the campaign to ban so-called "partial-birth abortion," and its potential to erode, if not completely eviscerate, the right to choose abortion. As the author explains, contrary to the way "partial-birth abortion" has been depicted in the press and on the floor of state legislatures, bans on "partial-birth abortion" are not limited to post-viability abortions, nor are they limited to one specific procedure. Instead, statutes banning "partial-birth abortion" are written so broadly as to prohibit the safest and most common procedures used to perform abortions pre-viability. Moreover, the true aim of the campaign is to strike at the heart of Roe v. Wade by eliminating the importance of the viability line, and elevating concern for the fetus above concern for women's health and bodily integrity. Unless the Supreme Court recognizes the limitations of lower courts' analyses of these statutes, the rights of women to protect themselves and their health will be severely eroded, even by a decision striking down the bans.
On October 26, 1999, the United States Court of Appeals for the Seventh Circuit, sitting en banc, issued a sharply divided opinion upholding by a 5-4 vote Wisconsin and Illinois statutes, both banning so-called "partial-birth abortion."1 The decision, coming just one month after a unanimous three-judge panel of the United States Court of Appeals for the Eighth Circuit struck down three similar statutes, from Arkansas, Iowa and Nebraska, as unconstitutional,2 sets the stage for a showdown in the United States Supreme Court on an issue that has been percolating in Congress, state legislatures and the courts since 1994.
At stake in these cases is not simply whether states may ban a particular method of abortion. Indeed, the state and federal courts that have addressed the issue have almost uniformly held that statutes banning "partial-birth abortion" ban safe and common abortion procedures used prior to viability, and rejected the notion that they ban only one "late term" procedure.3 Rather, the question the Supreme Court will face is whether the fundamental principles of Roe v. Wade,4 as modified by the Supreme Court in Planned Parenthood v. Casey,5 remain the law of the land, whether these principles will be further eroded or whether they will be eviscerated entirely. Particularly vulnerable given the posture of these cases and the arguments presented by the states are the protections guaranteed to women by the bodily integrity strand of the right to privacy, the centrality of the viability line to abortion jurisprudence and the primacy of protection of women's physical and mental health that has been the hallmark of Supreme Court abortion jurisprudence for over 25 years.
This article will focus on two deficiencies in the analyses of federal courts in reviewing bans on "partial-birth abortion." First, every federal court to date to assess the constitutionality of statutes banning "partial-birth abortion" has applied the undue burden standard of judicial scrutiny established by the Supreme Court in its 1992 decision in Planned Parenthood v. Casey.6 No federal court has considered whether Casey's formulation may relate to some types of restrictions on abortion but not to others.7 Second, despite Chief Judge Posner's extensive discussion in Planned Parenthood of Wisconsin v. Doyle,8 the courts have failed to fully address what permissible state interests exist pre-viability and post-viability and in some cases have seemingly accepted a previously unrecognized state interest in preventing "gruesome" abortion procedures.9
This article will examine how the limited nature of this review threatens to further weaken protection for the right to choose abortion, even if the bans on "partial-birth abortion" are eventually struck down as "undue burdens" on the right to choose. I will argue that in its upcoming review of this issue, the Supreme Court should determine how the nature both of the infringement of the woman's right to choose involved in these statutes and the state interests asserted by defenders of the statutes, effect the standard of review and whether the undue burden standard adequately protects a woman's right to bodily integrity.
WHAT IS "PARTIAL-BIRTH ABORTION"?
No campaign by anti-abortion forces has been more successful in state legislatures than the campaign to ban so-called "partial-birth abortion." In just over four years, bans were enacted in 30 states,10 blanketing the United States with a single abortion restriction in a way unprecedented since Roe v. Wade.11 On the other hand, until the decision by the Seventh Circuit in Hope Clinic,12 the campaign was an overwhelming failure in the courts where 19 out of the 20 state laws challenged had been enjoined or their enforcement severely limited.13
The discrepancy between the campaign's success in the legislatures and its widespread failure in the courts can be attributed at least partly to the fact that the statutes are not what their supporters originally claimed; nor are they what the media has generally described them to be. This public campaign against "partial-birth abortion" diverted attention away from both the broad reach of the statutes as revealed by their plain language and away from their direct attack on the importance of the viability line and the health exception in abortion jurisprudence.14
In particular, two myths propagated by anti-abortion sponsors of legislation have misled the public. First, sponsors of bills banning "partial-birth abortion" focused their rhetoric and graphic demonstrations of what the bills would ban on a medical procedure that is a variation of dilation and evacuation, or "D&E" abortion,15 the most common method of second trimester abortion.16 This variation of the D&E is sometimes called, variously, intact D&E or dilation and extraction abortion ("D&X").17 Following President Clinton's veto of a federal ban on "partial-birth abortion" in 1996, the American College of Obstetricians and Gynecologists ("ACOG")18 proposed a definition of the term D&X.19 Recognizing that the D&X is a variation of the D&E, ACOG stated that while it "could identify no circumstances under which this procedure would be the only option to save the life or preserve the health of the woman," the procedure "may be the best or most appropriate procedure in a particular circumstance" in the doctor's judgment.20
D&X procedures, as defined by ACOG, are generally not used until at least 16 weeks into pregnancy,21 and accordingly are quite rare.22 Physicians' testimony has established that D&X is an important medical procedure with health benefits for some women.23 For example, the plaintiff physician in Carhart established at trial that "the D&X that Dr. Carhart performs is the safest procedure to use when he uses it,"24 and that even banning the D&X procedure alone would force some patients to endure "an appreciably greater risk of injury or death than would be the case if these women could rely upon" the D&X.25
However, despite this focus on the D&X procedure by sponsors of legislation, by the media and, consequently, by the public, the statutes themselves make absolutely no mention of the D&X or intact D&E.26 Instead, they ban what they call "partial-birth abortion," a term which itself has "no fixed medical or legal content."27 Although the statutes' definitions of "partial-birth abortion" vary somewhat, the definition of "partial-birth abortion" in the Wisconsin statute is typical of the language used in the federal and most of the state bills. That statute defines "partial-birth abortion" as "an abortion in which a person partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child, and then completes the delivery of the child."28 In other words, any abortion procedure in which the fetus is still "living" at the time it is partly in the uterus and partly in the vagina is banned if the fetus is then "killed" before it is completely removed from the woman's body. As one federal district court held in examining a similar statute:29
Act 984 defines partial-birth abortion as "an abortion in which the person performing the abortion partially vaginally delivers a living fetus before taking the life of the fetus and completing the delivery." None of those terms are further defined. Act 984 does not limit its applicability to later term abortions. There is no specific exclusion of other procedures such as suction curettage or D&E. "Deliver" has a broad meaning in medical terms and "partially" means anything less than whole or complete, so Act 984 can be read to apply if any small portion of the fetus is moved to the vagina before the life is taken and the delivery completed.
Virtually all abortion procedures may involve elements that could be described as partial vaginal delivery,30 that is, part of the fetus is brought through the woman's cervix and into her vagina before or as the fetus is killed. Thus, courts addressing the issue have held almost without exception that the statutes ban far more than the D&X procedure and would prohibit physicians from performing the D&E procedure,31 the safest and most common procedure used in the second trimester, and even in some cases the suction curettage procedure.32
Second, the bill sponsors and the media have repeatedly referred to procedures banned by the bills as "late term abortions," a term which is itself undefined. The implication in speeches and pamphlets supporting passage of the bills is that the only abortions banned by the bills are post-viability abortions, ones in which the fetus could otherwise survive on its own outside the mother's body, fetuses that, in the words of one ban proponent, are "inches from enjoying life."33 Again, though, none of the statutes banning "partial-birth abortion" include such a limitation.
Instead, the broad language of the prohibitions is applicable throughout pregnancy, both before and after the fetus is viable, and many of the statutes make this explicit. For example, the Wisconsin statute bans procedures involving a "living child" defined as "a human being from the time of fertilization until it is completely delivered from a pregnant woman."34 Nowhere do these statutes include a limitation on the gestational age of the fetus to whom the bans apply, mention "late term," or include a limitation to any particular trimester, weeks of pregnancy or any other time period, nor do they distinguish between procedures that take place before viability and those that take place after viability of the fetus.
If the statutes are not really attempts to ban one particular procedure, then what are they? As one federal judge put it, "[d]efendant's claim that this law applies only to the D&X procedures is not particularly credible. Were that the case, the legislature could have done a number of things to ensure that application".35 Instead, the judge found, the Act's "broad language seems to purposefully create confusion and ambiguity."36 Moreover, in the state of Nebraska's November 15, 1999, petition for a writ of certiorari from the Eighth Circuit's decision, Nebraska argues that fetuses are human beings, and that these "partially-born children" are now fighting for their rights as equal citizens of the United States under the Fourteenth Amendment,37 and claims that the ban is a necessary ban on a "gruesome" and "hideous" procedure.38 The argument, adopted by many states defending similar statutes, is that once a fetus is partly in the vaginal canal, and thus "partially born," the fetus should be considered a person with all the rights accorded by the Fourteenth Amendment. Perhaps the most chilling example of this argument was provided by the State of Louisiana which argued that the definition of person should be "move[d] . . . back only a few inches" to the cervical os inside the woman's body, essentially claiming the vaginal canal as public, not private space.39
These statements reveal the real goals behind the campaign to ban "partial-birth abortion": (1) defining a new class of "persons" - the "partially-born" - with rights equal to or greater than those of the women whose uteruses sustain them, and (2) advancing "gruesomeness" or "cruelty" to fetuses as a state interest which can override women's interest in protecting their health and preserving their bodily integrity throughout pregnancy and preserving their right to terminate a pregnancy pre-viability. These goals, if achieved, would spell the end of women's right to choose abortion.
Ashcroft Strikes Out
