Supreme Court decision on intact D&X likely to spur state attempts to expand abortion restrictions

Justices found the late-term abortion law -- even without a health exception -- constitutional because of the lack of evidence to show the procedure is medically necessary.

By Amy Lynn Sorrel — Posted May 7, 2007

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The U.S. Supreme Court's decision to uphold the 2003 Partial-Birth Abortion Act has some physicians concerned that it opens the door for the government to intrude on the physician-patient relationship. Other doctors said the ruling is a narrow one and praised the first federal restriction on an abortion procedure since abortion was legalized by Roe v. Wade in 1973.

But one thing is clear, said advocates on both sides of the debate. The decision in Gonzales v. Carhart is likely to spur abortion-control measures in the states.

In its 5-4 ruling on April 18, the high court found the federal law constitutional, even though it lacks an exception for cases when a woman's health is in jeopardy. "Partial-birth abortion" is a nonmedical term that refers to intact dilation and extraction. The statute imposes criminal punishment on physicians who perform the procedure, except to save the pregnant woman's life.

The majority of justices concluded that there is not enough scientific evidence to show that the method is medically necessary, and therefore, the ban does not impose an undue burden on women's access to late-term abortions.

"The court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty," Justice Anthony M. Kennedy wrote for the majority. "Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts."

The high court also rejected the notion that the law was so vaguely worded that doctors could not perform other late-term abortion techniques for fear of prosecution.

In a dissenting opinion, however, Justice Ruth Bader Ginsburg called the decision "alarming." She said it retreats from earlier Supreme Court precedent. "It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists."

The decision reversed several lower court rulings that the law was unconstitutional because it lacks a health exception. It also deviates from a 2000 Supreme Court ruling that struck down a Nebraska law banning the procedure. The majority stopped short of overturning that decision on the grounds that the federal statute was narrower than the state law.

Ripple effect anticipated

Leaders on both sides of the issue predict that the ruling will result in more state efforts to regulate the procedure. Abortion-rights groups expect it to embolden attempts to adopt such restrictions as mandatory counseling laws requiring doctors to give women certain information or view an ultrasound beforehand. Some fear that states could try to ban other late-term abortion methods or mount a challenge to Roe v. Wade.

"The battle will be waged on the next abortion procedure, and the next," said retired Seattle family physician Suzanne T. Poppema, MD, first vice chair of Physicians for Reproductive Choice and Health.

Americans United for Life plans to support stricter state abortion measures in the legislative year ahead, said its president, Clarke D. Forsythe. But he acknowledged that the high court's decision "gives no green light to broad prohibitions on abortion."

Emory University political science professor Alan I. Abramowitz said the ruling pertains to a specific procedure used in a small number of cases. Without another major shift on the bench, he said, the decision doesn't foretell an overturning of Roe v. Wade "because it doesn't touch on the fundamental [health] question involving the mass majority of abortions."

Twenty-seven states in the last decade passed laws prohibiting "partial-birth" abortions without a health exception, 19 of which were blocked following the Supreme Court's 2000 decision, according to the Guttmacher Institute, which supports abortion rights.

The decision means that the federal ban supersedes any weaker state measures, experts say. It remains unclear whether states with laws on the books can pursue efforts to revive their statutes or if they will use the high court ruling as a blueprint to pass new ones.

In light of their Carhart ruling, justices less than a week later returned Missouri's 1999 ban to the 8th Circuit Court of Appeals, which had struck it down in 2005.

ACOG, CMA criticize decision

Abortion-rights advocates and some doctors say state and congressional lawmakers have no place in decisions that should be left between physicians and patients.

"The ban violates the doctor-patient relationship and allows the government to invade the exam room and the practice of medicine," said California Medical Assn. President Anmol S. Mahal, MD. The CMA filed a friend-of-the-court brief opposing the federal law but took no position on abortion. Although the decision criminalizes doctors' decision-making in just one procedure, it sets a bad precedent for other areas of medicine, Dr. Mahal said.

ACOG called the ruling, on what it refers to as intact dilation and extraction, "shameful." The organization opposed the federal law because it lacks a health exception, and it believes the ban prevents what can be a safer alternative than other late-term methods in certain circumstances.

The act "diminishes the doctor patient-relationship by preventing physicians from using their clinical judgment and experience," the group said in a statement.

The AMA did not file an amicus brief in the case. AMA policy states that, according to scientific literature, there does not appear to be any identified situation in which intact dilation and extraction is the only appropriate procedure to induce abortion, and ethical concerns have been raised about the technique.

The AMA recommends that the method not be used unless alternative procedures pose materially greater risk to the woman.

Gregg Bloche, MD, a Georgetown University law professor, said precedent exists for legislating medical decisions involving, for example, the mentally ill or prescription drug regulation. "But what we have here is the court stated the government has the authority to dictate medical practice in the absence of evidence." That could open the door for lawmakers to pass laws on unsettled topics, such as stem cell research, end-of-life issues, even the cost of a procedure, rather than deferring to medical judgment, Dr. Bloche added.

Dr. Poppema fears the criminal consequences when doctors must make quick decisions. She said the law's language could be broadly construed to apply to other late-term abortion methods and will have a "chilling" effect on them.

It also remains unclear how the federal ban will be enforced.

"One would assume that a physician would have to be turned in by someone. We practice as a team, and the thought of looking over your shoulder is pretty horrible," Dr. Poppema said.

Narrow ruling targets only D&X

But anti-abortion groups and other physicians say the ruling narrowly applies to intact dilation and extraction, which they believe has no medical rationale. They applauded the high court for setting a standard on abortion.

"I don't think we should expect any less in terms of quality of care and techniques than any other procedure in medicine," said Robert H. Aikman, MD, an ob-gyn in Tulsa, Okla., who used to perform abortions. He questioned the necessity of intact D&X.

Tennessee ob-gyn Gene Rudd, MD, senior vice president of the Christian Medical and Dental Assns., said a general health exception would be so broad that it would permit a doctor to perform the procedure for any reason. The organization filed a friend-of-the-court brief supporting the act.

Americans United for Life, which also supports the ban, said the law clearly defines the prohibitions on only a single procedure, and doctors will not get into legal trouble as long as they comply in good faith.

Forsythe, the group's president, also noted that courts in the past have deferred to the states to legislate certain medical issues, such as physician-assisted suicide. But Roe v. Wade made abortion the exception.

"There's no constitutional right to an appendectomy or other types of procedures," he said.

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Abortion and the court

Some of the prominent Supreme Court decisions that have shaped the abortion debate.

Roe v. Wade (1973): Established that the constitutional right to privacy extends to abortion. States may regulate abortion after fetal viability as long as measures contain an exception for the preservation of the woman's life or health.

Harris v. McRae (1980): Established the government does not have an obligation to pay for medically necessary abortions, except to save the woman's life.

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992): Established that states may regulate abortion through measures such as waiting periods, informed consent and parental notification as long as the laws do not create an undue burden on women's access to the procedure under Roe v. Wade.

Stenberg v. Carhart (2000): Struck down Nebraska's ban on so-called partial-birth abortions as unconstitutional because it lacked a health exception and because the language referring to late-term abortions was broad.

Ayotte v. Planned Parenthood of Northern New England (2006): Ruled that New Hampshire's parental notification law would be considered unconstitutional because it lacked a health exception. The high court did not overturn the entire measure but sent it back to the lower court, which put it on hold because state lawmakers were considering a repeal. Legislators are still debating how to proceed.

Gonzales v. Carhart (2007): Upheld the federal Partial-Birth Abortion Act of 2003 as constitutional, even though it lacks a health exception, because the court found there is insufficient evidence that intact D&X is safe and necessary.

Sources: Planned Parenthood Federation of America, Guttmacher Institute

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