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THE POSITIONS OF MAJOR MEDICAL ORGANIZATIONS

The American College of Obstetricians and Gynecologists ("ACOG"), which represents 39,000 physicians and the American Medical Women's Association ("AMWA") oppose bans on "partial-birth abortion." The ACOG Statement of Policy: Statement on Intact Dilatation and Extraction40 ("ACOG Statement") provides:

It is difficult to respond to [questions regarding "partial-birth abortion"] because the descriptions are vague and do not delineate a specific procedure recognized in the medical literature. Moreover, the definitions could be interpreted to include elements of many recognized abortion and operative obstetric techniques.⁴¹

Accordingly, ACOG opposes the bans as "inappropriate, ill advised, and dangerous".⁴² AMWA also opposes the ban stating that it is "gravely concerned with governmental attempts to legislate medical decision-making through measures that do not protect a woman's physical and mental health, including future fertility, or fail to consider other pertinent issues, such as fetal abnormalities".⁴³

Similarly, the AMA issued a report on "partial-birth abortion" stating:

[T]he language. . . - "partially vaginally deliver a living fetus before killing the fetus and completing the delivery" - does not refer to a specific obstetrical/surgical technique, nor does it refer to a specific stage of gestation (i.e., pre- or post-viability). In fact, [this language] could be interpreted to include many recognized abortion and obstetric techniques (such as those used during dilation and evacuation (D&E)), or other procedures used to induce abortion.⁴⁴

Despite these statements, the AMA did at one point support the 1997 version of the federal bill.⁴⁵ An internal audit commissioned by the AMA concerning the organizations' controversial decision to support the bill later found that the organization had "blundered," by losing sight of its responsibility to protect the physician-patient relationship, contradicting long-standing policy, and ending up on the "wrong side of the issue".⁴⁶ Thereafter, the AMA president has said that the support did not extend beyond the defeated 1997 bill.⁴⁷

UNITED STATES SUPREME COURT WILL HEAR NEBRASKA CASE IN THE SPRING OF 2000

The Eighth Circuit's three decisions issued on September 24, 1999, analyzed the Arkansas, Iowa and Nebraska laws banning "partial-birth abortion" for their impact on pre-viability abortions, accepted the appellees' argument that the bans imposed an undue burden on women's right to choose abortion, and rejected the states' contention that the bans applied only to a single, "late-term" procedure. Because the panel found that the bans imposed an undue burden on women's right to choose abortion, it did not address the appellees' arguments that the bans were unconstitutionally vague and that the bans' lack of a health exception was unconstitutional.⁴⁸

In contrast, the United States Court of Appeals for the Seventh Circuit upheld Wisconsin and Illinois statutes banning "partial-birth abortion." The Court of Appeals conceded that the statutes could encompass abortions by common methods, and that banning such abortions would be unconstitutional.⁴⁹ Nonetheless, the Court of Appeals abjured its duty to strike down the statutes. Instead, it hypothesized about ways state courts or agencies might construe the statutes to apply only to D&X procedures; it ordered "precautionary" injunctions against application of the statutes to "normal" D&Es and inductions, without defining "normal"; and it left the ultimate construction of the Act to a process of case-by-case prosecutions and civil suits.⁵⁰

The Seventh Circuit also held that the Wisconsin and Illinois statutes did not impose an undue burden despite their lack of a relationship to the state's legitimate interests in maternal health and potential life. The court concluded that as long as an abortion restriction does not impose a substantial obstacle, it can be justified by "moral rather than utilitarian considerations".⁵¹ Thus, by failing to require that the statutes bore any relationship to a valid state interest, once the court determined that the burden imposed by the statutes was not "substantial," it analyzed the law under a test even less stringent than rational basis review.⁵² In effect, the court held that states can proscribe a method of abortion so long as there is another safe method available, even if the other method is less safe and even if the intrusion on bodily integrity involved is radically different.

On January 14, 2000, the United States Supreme Court granted the state of Nebraska's petition for a writ of certiorari to the Eighth Circuit to review its decision in Carhart, setting the case for argument in April 2000. Although it is possible that the Court will also grant petitions to review the Seventh Circuit's decision upholding the Wisconsin and Illinois statutes,⁵³ as well as the Eighth Circuit's decision striking down the Iowa statute,⁵⁴ it is most likely that those cases will be held in abeyance while the Court considers the Nebraska case.

As the United States Supreme Court noted in Casey,⁵⁵ a woman's constitutional right to terminate her pregnancy, as established by the Court in Roe,⁵⁶ incorporated two strands of the right to privacy protected by the United States Constitution: the right to decisional autonomy and the right to bodily integrity.⁵⁷ As the Court stated:

It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U.S. 494 (1977); Eisenstadt v. Baird, supra; Loving v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily integrity, see, e.g., Washington v. Harper, 494 U.S. 210, 221-222 (1990); Winston v. Lee, 470 U.S. 753 (1985); Rochin v. California, 342 U.S. 165 (1952).⁵⁸

Cases implicating the decisional autonomy strand of the right to privacy are, at heart, concerned with the independence of the decision-maker, see Eisenstadt v. Baird,⁵⁹ (right of privacy is "right of the individual, . . . to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."), while those implicating the bodily integrity strand are concerned with forced or unwarranted intrusions into the body itself. See Union Pacific Ry. Co. v. Botsford. ⁶⁰ Accordingly, the decisional autonomy strand of the right to privacy governs the woman's decision to terminate her pregnancy, while the bodily integrity strand governs her ability to implement that decision in the manner she chooses in consultation with her physician. See Benten v. Kessler;⁶¹ City of Akron v. Akron Ctr. for Reprod. Health, Inc.⁶²

The Court has recognized the different interests protected by these different aspects of the right to privacy and thus its analysis of abortion restrictions has varied, depending on which of these strands of the right to privacy was implicated. In evaluating abortion restrictions implicating decisional autonomy, such as parental or spousal consent or mandatory delay laws, courts have balanced the state's interests against the woman's ability to make the ultimate decision. Did the restrictions grant a third party veto power over the woman's decision itself, and were the intrusions justified by a legitimate interest in maternal health? See, e.g., Thornburgh,⁶³ Ohio v. Akron Reprod. Health Ctr.⁶⁴ In evaluating restrictions implicating bodily integrity, though, courts examined the extent of the intrusion into the woman's body, and demanded that maternal health be given primacy throughout pregnancy. Thornburgh.⁶⁵

A. CASEY'S UNDUE BURDEN STANDARD SHOULD NOT APPLY TO LAWS DICTATING A WOMAN'S CHOICE OF ABORTION METHOD

In Casey,⁶⁶ the Supreme Court reduced the constitutional protection for a woman's decisional autonomy in the abortion decision pre-viability, explicitly altering the standard from strict scrutiny to the "undue burden" standard. The Court noted what was "at stake [in Casey] is the woman's right to make the ultimate decision, not a right to be insulated from all others in doing so".⁶⁷ Therefore, the Court reasoned that the state had an interest in dissuasion, even pre-viability:⁶⁸

[r]egulations which do no more than create a structural mechanism by which the State, or the parents or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose. See infra, at 899-900 (addressing Pennsylvania's parental consent requirement). Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal.

In summarizing the new undue burden standard in order to give guidance to the lower courts, the Court stated:⁶⁹

To promote the State's profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right.

As these statements indicate, the adoption of the undue burden standard in Casey does not alter the standard by which bans on "partial-birth abortion" must be judged. Casey's undue burden standard is limited to the first component of the woman's right to choose abortion - state regulation of the woman's decision to terminate a pregnancy; it does not apply to her decision about the method of doing so.⁷⁰ If it did, it would not adequately protect the woman's bodily integrity. For example, would it be an "undue burden" to ban induction abortions or medical abortions using RU-486 where D&Es and suction curettage abortions are more widely available, just as safe, and less costly or the same price? Perhaps not. But forcing a woman to undergo a D&E or suction curettage abortion rather than a chosen induction or medical abortion, or vice versa, would infringe on her bodily autonomy much more than in Rochin⁷¹ and Washington v. Harper.⁷²