Partial-Birth Confusion-The Supreme Court puts doctors in the hot seat

http://www.slate.com/id/2167383/fr/flyout

Partial-Birth Confusion
The Supreme Court puts doctors in the hot seat.
By Emily Bazelon
Posted Friday, June 1, 2007

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.

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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.

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