|
|
| |||||||||||||||||||||||||||||||||||||
Ever since the 1973 decision in Roe v. Wade, it has been understood that states may regulate pre-viability abortion and outlaw post-viability abortion completely, provided that the rules protect both the life and the health of the pregnant woman. And in the 1992 decision in Planned Parenthood v. Casey, the Court reaffirmed this principle, requiring a health exception in bans of post-viability abortion and stating that regulations regarding pre-viability abortion may not impose an "undue burden" on women. This balance reflects the view that a woman's interest in preserving her own health should be protected more strongly than any state interest in preserving intrauterine life. The latest decision of the Supreme Court alters this balance and holds that requiring women to submit to an unnecessarily dangerous version of an abortion procedure (in cases in which D&X is deemed by a physician to be the safest option) is neither an undue burden on them nor a dereliction of the state's duty to guard women's health and personal autonomy. The decision thus opens the door to revisiting any number of state and federal efforts to restrict access to abortion services.
The Supreme Court considered this very same issue 7 years ago in Stenberg v. Carhart, when it struck down a similar Nebraska state statute because it did not contain an exception to protect a woman's health and because its definition of the prohibited procedure was so vague that it could reasonably have been interpreted by doctors to include not only the D&X procedure but other more common abortion methods as well. Writing for the 5-to-4 majority in Gonzales v. Carhart, however, Justice Anthony Kennedy distinguished the federal statute from the Nebraska one, noting that it included a more precise definition of the prohibited acts.
A so-called partial-birth abortion, or D&X, involves dilating the cervix, partially extracting the fetus, puncturing the skull while it remains in the uterus, and removing the brain tissue through suction, thus allowing for easy removal of the otherwise intact fetus through the birth canal. In cases in which the procedure is performed, it is usually done late in the second trimester of pregnancy, though in some cases it is used during the third trimester. D&X procedures are rare; in 2000, only 2200 were performed by 31 providers, accounting for 0.17% of all abortions in the United States that year.1 The more common abortion procedures are suction curettage (used in the first trimester) and dilation and evacuation (D&E), which is the most common procedure in the second trimester. D&E requires dismembering the fetus within the uterus, which poses risks of uterine damage or perforation from surgical instruments and sharp remnants of fetal bone.
Congress passed two statutes banning D&X procedures in the 1990s and another in 2003 that added language to define the prohibited acts more specifically. All three versions allowed for an exception to the ban only in cases in which a woman's life was in danger. Supporters of the Partial-Birth Abortion Ban Act of 2003 argued that a health exception would most likely be interpreted so broadly by doctors that it would render the legislation meaningless. Similar legislation was passed by state legislatures, and by the late 1990s, 31 states had enacted laws prohibiting partial-birth abortion; only 5 of the bans contain any kind of health exceptions (see map).
|
It is unclear, however, what degree of deference the Court should grant to such findings when Congress is acting as a source of scientific and medical authority. Legislation often must be passed despite the presence of scientific uncertainty, and much environmental-protection legislation, for example, could be challenged if complete scientific consensus were required before restrictions on industrial pollution could be upheld. 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. Although regulation of the drugs and devices marketed for use in medical care has long been accepted, legislative restriction of doctors' individual medical judgments is far more contentious. Where governmental involvement in medical decision making is warranted, it is best handled through dispassionate, evidence-based expert reviews. As Kassirer has written, "The data upon which many important medical decisions are based are often contradictory and still in evolution. Legislators do not have the context nor the capacity to weigh medical evidence adequately."2 And indeed, the tradition has been to allow the medical profession to define for itself the meaning of "medically indicated."3
The decision in Gonzales v. Carhart poses a threat to physicians who perform the still-legal D&E procedure and to those who determine that a D&X is indeed needed to save the life of a pregnant woman. Although the Court emphasized that a physician cannot be convicted unless he or she intentionally violated the statute, questions as to whether a woman's life was in danger and whether the physician's intent was to perform a D&X (as opposed to a D&E) are matters of interpretation. Even if physicians ultimately expect to be exonerated, the mere prospect of being investigated by a possibly hostile prosecutor may well have a chilling effect on their decision making. Certainly, that was the effect on many physicians after the 1975 prosecution of Dr. Kenneth Edelin, who was indicted for manslaughter for performing a second-trimester abortion 2 years after Roe v. Wade.4
As to the substantive issue of medical necessity, Greene and Ecker have raised troubling pragmatic questions about what would count as a risk to a woman's life, rather than merely to her health, and where the threshold of "necessity" lies: "Would a procedure that averts a 50 percent risk of death be adequate to qualify as `necessary to save the life of the mother?'"5
In an impassioned dissenting opinion delivered from the bench, Justice Ruth Bader Ginsburg recalled the statement in the 1992 Casey decision that "liberty finds no refuge in a jurisprudence of doubt." The 5-to-4 decision in Gonzales v. Carhart, occasioned by a change in the makeup of the Supreme Court, illustrates how fragile are the constitutional interpretations by which reproductive rights are guaranteed. The prospect of yet further revisions occasioned by future appointments to the Court adds yet another measure of uncertainty beyond the uncertainties that physicians will face when choosing how best to terminate a dangerous pregnancy. And throughout the country, in light of this decision, states will be determining whether their previously unconstitutional bans on partial-birth abortion have now been brought back into effect, many of them incorporating language and proscriptions different from and broader than those of the federal law.
But the greatest uncertainty of all concerns the continued viability of any right to abortion in all but imminently life-threatening situations. The federal statute makes no distinction between pre-viability and post-viability abortions and bans the D&X procedure in both situations, even in cases in which physicians believe that the alternatives are more dangerous to a woman's health. The prospect that a woman's health might be endangered by limiting access to D&X procedures is deemed insufficient to qualify as an "undue burden." Justice Kennedy's majority opinion in Gonzales v. Carhart endorses this conclusion, stating that it is "legitimate" because "a fetus is a living organism within the womb, whether or not it is viable outside the womb" and that "choosing not to prohibit [a brutal and inhumane procedure] will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life."
And thus the balance of interests shifts, with women's health no longer paramount but rather societal morality and the state's interest in life even before the point of viability outside the womb. For Justice Ginsburg, this vote signals an end to support for the central premises of Roe v. Wade: "In candor, the Act, and the Court's defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this court — and with increasing comprehension of its centrality to women's lives."
The views expressed in this article are the author's and do not necessarily reflect those of the Guttmacher Institute.
Source Information
Professor Charo is a professor of law and bioethics at the University of Wisconsin, Madison, and a member of the board of directors of the Guttmacher Institute.
An interview with Dr. LeRoy Carhart of Nebraska and attorney Priscilla Smith of the Center for Reproductive Rights, who argued Gonzales v. Carhart before the Supreme Court, can be heard at www.nejm.org.
This article (10.1056/NEJMp078055) was published at www.nejm.org on April 23, 2007.
References
| |||||||||||||||||||||||||||||||||||||
This article has been cited by other articles:
HOME | SUBSCRIBE | SEARCH | CURRENT ISSUE | PAST ISSUES | COLLECTIONS | PRIVACY | HELP | beta.nejm.org Comments and questions? Please contact us. The New England Journal of Medicine is owned, published, and copyrighted © 2008 Massachusetts Medical Society. All rights reserved. |
Audio Interview
