I’ve been challenged on my post decrying the recent Supreme Court decision to criminalise intact dilatation and evacuation (iD&E), so here’s more argumentation about how I came to my conclusion. For those who enjoy reading 73-page legal documents, the complete summation can be found here.
The finding can be condemned on two grounds. It ignored medical evidence and expert medical opinion when ruling on a matter of medical procedure, and it over-reached the proper role of the Court, that is, it was a classic case of “judicial activism.” I’m going to start with the medical side because that’s where my own knowledge base lies. The New England Journal of Medicine has already responded to the findings with three editorials.
From “The Partial Death of Abortion Rights” by R. A. Charo:
But this case is singular in that the Court upheld congressional findings even in instances in which multiple state trial courts had found these same assertions to be based on nonexpert testimony and, in several instances, factually erroneous. The Court then argued that since medical opinion is divided about D&X, Congress has the authority to invade the doctor–patient relationship and substitute blanket legislative judgment for individualized medical judgment concerning the best care for a particular patient.
From “The Intimidation of American Physicians - Banning Partial Birth Abortions” by Michael F. Greene:
The decision to pursue a second-trimester abortion is never taken lightly and usually results only after anguished discussions among the patient, her loved ones, and her health care providers. Once the decision has been made to perform a second-trimester surgical abortion, the last thing a provider needs is to have to worry that the procedure could potentially evolve into a criminal act if a fetus in breech presentation should slip out intact through a partially dilated cervix. But this is exactly the situation created by the partial-birth abortion bill.
From “Government in Medicine” by Jeffrey M. Drazen:
In 2005, we all saw the disastrous consequences of congressional interference in the case of Terri Schiavo. In that case, the courts wisely decided that Congress should not be practicing medicine. They correctly ruled that wrenching medical decisions should be made by those closest to the details and subtleties of the case at hand. Such decisions must be made on an individual basis, with the best interests of the patient foremost in the practitioner’s mind.
It is not that physicians do not want oversight and open discussion of delicate matters but, rather, that we want these discussions to occur among informed and knowledgeable people who are acting in the best interests of a specific patient. Government regulation has no place in this process. In 1997, another editor of the Journal, Jerome Kassirer, took Congress to task for practicing medicine without a license. He cited a number of instances, including the passage of a forerunner of the bill that the Supreme Court upheld last week. With Gonzales v. Carhart, the judicial branch has regrettably joined the legislative branch in practicing medicine without a license.
There are no pieces in the NEJM in favour of the finding, not even the editorial by Jeffrey Drazen, who is a respiratory physician with no professional investment in abortion techniques. Due to publishing timetables, the JAMA and the Annals of Internal Medicine have not had an opportunity to report. I await their comments with interest.
So it’s not just me. The main objections to the bill are that (i) it does not allow exceptions for the health of the mother, only in undefined “life-threatening” situations, and (ii) it criminalises a technique based on arbitrary endpoints that cannot be predicted by the doctor in advance.
To these objections, well described in the editorials above, I would add two significant objections of my own.
The first is the justices’ inappropriate use of emotive language. The justices recognise that “partial-birth abortion” is not a medical term. It was invented by anti-abortion activists as a “framing tool”; in other words, it is a manipulation of terminology to demonise a technical procedure. It is perfectly appropriate for the justices to use the term in so far as it appears in the name of the original Bill — but they use it widely throughout their opinion, even choosing to define “partial-birth abortion” as their preferred technical term, and the phrase seems to crop up repeatedly at times of rhetorical convenience.
The justices describe in extraordinary detail the procedure of performing an iD&E. The only possible reason for including all these gory details is to wave their anti-abortion credentials. When discussing the various methods of evacuating the foetal brain during an iD&E, the justices quote a nurse describing her experience of seeing an iD&E to the Senate Judiciary Committee.
From page 8:
Dr. Haskell went in with forceps and grabbed the baby’s legs and pulled them down into the birth canal. Then he delivered the baby’s body and the arms–everything but the head. The doctor kept the head right inside the uterus…
The baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.
The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out. Now the baby went completely limp…
He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.
Note the confronting language used. Note the repeated use of the word “baby,” not the correct term of foetus. Note the strategic ellipses. Note that the nurse is not named once, but Dr Haskell is named many times throughout the opinion. After some digging, I finally found the testimony to which the opinion refers. The nurse’s name is Brenda Pratt Shafer (she states in her testimony that she is happy to be named) and we find that she had been working with (but not for) Right to Life at the time of her testimony, so it is hardly non-partisan. That doesn’t diminish her testimony in itself, but this does: Whatever else happened in that procedure, the nurse testified to something that absolutely did not take place. “He threw the baby in a pan, along with the placenta and the instruments he had just used.” Haskell may well have placed the foetus in the pan, but there is no way he would have tossed it there. Nurse Shafer later testifies that the foetus was gently wrapped in blankets and given to the mother to hold — which hardly fits the description of a heartless baby-tosser. It is also extremely unlikely that Dr Haskell delivered “everything but the head” while keeping “the head right inside the uterus.” Unless the poor mother had such a severe prolapse that her uterus was sitting right at the opening of her vagina, then there must have been a part of the foetus’s body that had not been delivered.
Shafer’s testimony is an emotive rush, complete with statements like, “That baby boy had the most perfect angelic face I have ever seen.” There is nothing wrong with Nurse Shafer being anti-abortion or testifying in emotional overdrive — except for her use of the terms “baby” and “threw in the pan,” which deserve criticism for being misleading, as do the technical errors and glosses in what is supposed to be informed testimony. But why, of all the thousands of documents to choose from, did the majority judges choose to quote this one? Why at such length? Why omit the crucial details of Shafer’s association with Right to Life and several other facts that place her testimony in context? And why, most of all, would they quote this immediately after describing the same procedure in dispassionate technical terms? Because, it seems, they wanted to give a hook for the anti-abortion movement to hang its hat on. And indeed, if you Google the reference (H. R. Rep. No. 108-58, p. 3 (2003)), you find that quote has already been run up the flagpole by anti-abortion bloggers.
Bizarrely, this admittedly gruesome technique is entirely legal under the Act that the Court upheld — with one proviso: it is only criminal to perform the fatal coup after the foetus’s head (or navel if in a breech lie) passes out of the mother’s birth canal. If the doctor kills the foetus earlier, then everything is fine from a legal perspective. If Dr Haskell was to reach into the woman’s birth canal at an earlier stage and do exactly the same thing, the procedure would still be legal under the new law.* All this extraneous testimony served not one whit of legal purpose. It was manna for the Christian conservative supporter base.
My second objection is to the majority opinion that “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Firstly, we see the justices slipping into anti-abortion propaganda. Memo to clueless judges: a foetus is not an infant. More disturbingly, this is offered by the Court as an argument for criminalising iD&E because a woman might come to regret her decision. By this standard, we ought to criminalise cosmetic surgery and tubal ligation, not to mention marriage, tattoos, and Dashboard Confessional.
That’s the medical side. If I get to it, I’ll address the legal activism in another post.
*Addendum: I leave it to readers to consider whether the fatal coup of the D&E would be a safer procedure for the woman if performed when the foetus is mostly out of the birth canal and the critical anatomical landmarks can be seen, or whether it is safer to use long scissors and forceps by feel with the foetus high up in the birth canal and surrounded by a tight ball of uterine muscle.
