"Partial-birth" "D&X"-("Dilation and Extraction"),
"Intact D&E"-("Intact Dilation and Evacuation"), or
"Intrauterine Cranial Decompression"
Abortions

   So-called "Partial-birth" abortion is performed in the second and third trimesters and entails (1) inducing a breech delivery with forceps, (2) delivering the legs, arms and torso only, (3) puncturing the back of the skull with scissors or a trochar, (4) inserting a suction curette into the skull, (4) suctioning the contents of the skull so as to collapse it, (5) completing the delivery.  A partial breech delivery is not considered a "birth" at common law, where it is the passage of the head that is essential.

     Laws to ban this uniquely controversial late-term abortion procedure have been passed in at least thirty states, including: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Illinois, Indiana, Kansas, Louisiana, Michigan, Mississippi, Montana, Nebraska, New Jersey, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia and Wisconsin. The Utah statute applies only after viability (as defined by the statute).  Additionally, Massachusetts and Indiana have a specific ban on state funding of these procedures.

    While these statutes contain maternal "life" exceptions, they generally do not include a maternal "health" exception.   Supporters claim that a broad health exception would effectively eviscerate the laws, while opponents claim that the laws are thus unconstitutional under Casey.   Opponents also claim that the bans are void under Casey because they place an "undue burden" on pre-viability abortions and argue that the language of most of the statutes is vague enough to affect other procedures commonly used in the first two trimesters.  This is the basis upon which most challenges to the statutes are based.  About two-thirds of the 30 or so laws passed (including those of Arizona, Michigan, Nebraska, New Jersey, and Ohio) have been enjoined either temporarily or permanently by federal courts.  These laws have been enjoined based on the findings by federal district courts that they unduly burden pre-viability abortions (either directly or because of statutory vagueness) or that they impede access to post-viability abortions that are justified by maternal health.  

The U.S. Supreme Court deal with another "procedure ban" in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).  That case dealt with saline amniocentesis abortions and found that a ban on them was unconstitutional:

     "These unappreciated or overlooked factors place the State's decision to bar use of the saline method in a completely different light. The State, through 9, would prohibit the use of a method which the record shows is the one most commonly used nationally by physicians after the first trimester and which is safer, with respect to maternal mortality, than even continuation of the pregnancy until normal childbirth. Moreover, as a practical matter, it forces a woman and her physician to terminate her pregnancy by methods more dangerous to her health than the method outlawed.

As so viewed, particularly in the light of the present unavailability - as demonstrated by the record - of the prostaglandin technique, the outright legislative proscription of saline fails as a reasonable regulation for the protection of maternal health. It comes into focus, instead, as an unreasonable or arbitrary regulation designed to inhibit, and having the effect of inhibiting, the vast majority of abortions after the first 12 weeks. As such, it does not withstand constitutional challenge"  Danforth at 78-79.

   Just what the "Partial-birth" abortion laws actually ban is a matter of legal controversy.  If, as opponents claim, they ban the common D&E procedure (a "technique in which the physician dismembers the fetus in the uterine cavity using sharp instruments such as forceps, and suction and then removes the fetal parts by pulling them out piece by piece through the cervical os.") or other, even more common, procedures, it would seem to fit well within the purview of Danforth and warrant being struck down.  On the other hand, if the laws ban only the rarer "Partial-birth," "ICD," or "D&X" method, then it is distinct from Danforth in important ways and might well be constitutional, as to purely elective abortions.  In either case, however, there is still the question of abortions that are justifiable for health reasons under Casey.  An "undue burden" on an abortion decision for health reasons will presumably be judged differently than those that are purely elective in nature.  In Casey, at 880, the Supreme Court apparently applied the "undue burden" standard to Doe-type health situations.  However, Casey offers little guidance in applying the standard, other than to say that a statute that does not "in any way pose a significant threat to the life or health of a woman" is constitutional, which is obvious enough.  At any rate, proponents of these procedural bans claim that this abortion method is not required to ensure women's health.  Opponents of these statutes argue that the "partial-birth" method is substantially safer than alternative procedures that require either intrauterine dismemberment (which is a rather forceful affair and is more likely leave fetal tissue behind) or delivery of an undeflated skull (which may require more dilation and result in a live delivery).  Requiring women to undergo a substantially more risky operation would, arguably, place an undue burden on the availability of an otherwise protected abortion.  Therefore, how important the procedure is to women's health is another point of controversy.  And it seems that the disagreement is widespread:  A unanimous American Medical Association's Council on Legislation supported the federal ban as did the AMA's Vice President, who asserted the method was "not medically indicated." However the AMA, as a whole, seems to have become more ambivalent, and has made no declarations on the matter since 1997.  The American College of Obstetricians and Gynecologists, on the other hand, while not concluding that the procedure is necessary in any particular circumstances, held that it should be made available to physicians as part of their surgical repertoire.  Moreover, a large number of federal district courts have determined that the procedure is materially necessary to some women who seek an otherwise legal abortion.  

      This area of abortion law is going to continue to win the attention of both the public and the courts--as developments in federal appellate courts show. 

The Situation in the United States (federal) Circuit Courts of Appeals.

     How these statutes have fared in the U.S. District Courts (i.e., the federal trial courts) is one thing, but now the appeals from those cases are starting to reach the federal appellate courts.  The U.S. Courts of Appeals (divided into 13 geographic circuits) are the midway point between the trial level and the U.S. Supreme Court.

     The United States Court of Appeals for Sixth Circuit held that Ohio's ban on partial-birth abortions unconstitutional in Women's Medical Professional Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997) and the U.S. Supreme Court refused to hear the appeal.  This is the first time a federal appeals court reviewed the constitutionality of this type of statute.  (It may be significant that the Ohio statute is not only the first of its kind, but also that it uses language very different from and much vaguer than its successors, which tend to be patterned after the federal bills.)  

     The fourth circuit issued a stay preventing the district courts in that circuit from enjoining enforcement of Virginia's statute in Richmond Medical Center for Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998), and the motion to vacate stay was denied by the U.S. Supreme Court, 1998 U.S. App. Lexis 18547.  (This was not a judgment as to the ultimate constitutionality of the statute, but may indicate that the panel doubted the likelihood of it being later found unconstitutional.)   

     Recently, three states' partial-birth-abortion laws were held unconstitutional by a single panel of the eighth circuit, after it concluded, in part, that all three statutes effectively forbade the common D&E (“dilation & evacuation”) procedure:  Carhart v. Stenberg, 1999 U.S. App. Lexis 23162 (8th Cir. Sept. 24, 1999) (Nebraska); Little Rock Family Planning Services, P.A. v. Jegley, 1999 U.S. App. Lexis 23165 (8th Cir. Sept. 24, 1999) (Arkansas); and Planned Parenthood of Greater Iowa, Inc. v. Miller, 1999 U.S. App. Lexis 23166 (8th Cir. Sept. 24, 1999) (Iowa). [NOTE: These three opinions are in ".pdf" format. If you do not already have it, you may download Adobe Acrobat .pdf reader for free.]

     In October of 1999, the Unite States Court of Appeals for the Seventh Circuit, in a 5 to 4 decision, upheld the constitutionality of the Illinois and Wisconsin statutes.  The Hope Clinic, et al. v. James E. Ryan, Attorney General of Illinois, et al., No. 98-1726 (7th Cir., October 26, 1999) This is the third time a circuit has fully addressed the issue and it is first time such a court found this type of statute constitutional.

Part III of Judge Easterbrook's opinion for the Court reads, in part: 

  "It is always difficult for a court of appeals to predict how Justices of the Supreme Court will apply a phrase with as much plasticity as "undue burden." But our best estimate is that "undue" rather than "burden" is the key word, and that "undue" means not only "substantial" (a small cost or inconvenience is not "undue") but also that the burden must be undue in relation to the woman's interests, rather than undue in relation to the court's assessment of society's interests. Plaintiffs' (implicit) argument that every regulation of a medical procedure is "undue" fails because many regulations create small burdens. The physician-only rule was one; a prohibition of D&X is another. Even for the class of women who seek late-second-trimester abortions, there is always one or more other safe methods of abortion in addition to D&X. Let us return to the natural experiment now under way. Plaintiffs do not contend that in any of the states where a partial-birth-abortion law is in effect, even one woman has been injured or denied an abortion because of the law.

Judge Posner's opinion for the dissent reads, in part: 

“[T]he statutes do not forbid the destruction of any class of fetuses, but merely criminalize a method of abortion--they thus have less to recommend them than the antiabortion statutes invalidated in Roe v. Wade, 410 U.S. 113 (1973). If any fetal lives are saved by these statutes, it will only be by scaring physicians away from performing any late-term abortions, an effect particularly likely in Wisconsin, whose statute imposes a punishment of life imprisonment for its violation.
. . . .
But as banning "partial birth" abortions is not intended to improve the health of women (or anyone, for that matter), it cannot be defended as a health regulation.
. . . .
[O]ne thing clear: it is extremely difficult, indeed probably impossible, to distinguish a "partial birth" abortion from the methods of abortion that are conceded to be privileged.
. . . .
How often the circumstances [that make D&X a desirable method] will be present is not critical. It is slight consolation to be told that while the state has forbidden the optimal treatment of your medical problem, that problem happily is rare.”

     The fact that various federal circuits (6th & 8th versus the 7th) have now developed contrary opinions on this issue makes it much more likely the U.S. Supreme Court will hear the issue.  It could do so sometime next year as the petitions from the 7th and 8th circuits come before the Court.  (It is possible that the cases may be consolidated if the Court agrees to take either of them.)  

     This December, Associate Justice John Paul Stevens (who is the "Circuit Justice" for the 7th circuit) issued a temporary injunction against the enforcement of the Wisconsin and Illinois statutes that were upheld by the 7th Circuit in the The Hope Clinic case.  This injunction will block enforcement of the statutes until the Supreme Court decides whether or not to hear the appeal.  (The 7th Circuit had recently declined to issue such an injunction.)  This was another indication that the Court was willing to hear the issue soon.   See this News Article.

Stenberg v. Carhart--the issue goes to the U.S. Supreme Court

    On Friday, the 14th of January, 2000, the United States Supreme Court granted a writ of certiorari on the petition by Nebraska Attorney General, Don Stenberg, to review 8th Circuit's decision in Carhart v. Stenberg.  In other words, the Supreme Court has decided to hear its first partial-birth abortion case.  This will be its first major abortion decision since 1992.  The Court will review the 8th Circuit's decision in Carhart v. Stenberg, supra, which was handed down in September of 1999.   In that case, a panel of the 8th Circuit of the U.S. Court of Appeals held Nebraska's Partial Birth abortion law unconstitutional.  The case has docketed under the name Don Stenberg, Attorney General of Nebraska, et al., Petitioners v. Leroy Carhart and Docket number (No. 99-830).  The case is scheduled for oral argument on Teusday, 25 April 2000.  See this News Article.

Briefs are now becoming available at www.findlaw.com.  Petitioner's Brief [PDF version]

The Nebraska Statute:

    The statute in controversy is generally similar to to most of the 30 statutes adopted by various states, therefore it is arguably an appropriate choice for the Court to test.  Section 28-326 (9) defines "Partial-birth abortion" and  § 28-328 (1) criminalizes the performance of it unless it is "necessary to save the life of the mother whose life is endangered by a physical disorder."    

§ 28-326.
. . . .

(9) Partial-birth abortion means an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery. For purposes of this subdivision, the term partially delivers vaginally a living unborn child before killing the unborn child means deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child. 

§ 28-328. Partial-birth abortion; prohibition; violation; penalties. (1) No partial-birth abortion shall be performed in this state, unless such procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. 

(2) The intentional and knowing performance of an unlawful partial-birth abortion in violation of subsection (1) of this section is a Class III felony. 

(3) No woman upon whom an unlawful partial-birth abortion is performed shall be prosecuted under this section or for conspiracy to violate this section. 

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These are some citations for the various state statutes:

Alabama,  1997 Alabama Laws Act 97-485 (S.B. 314)
Alaska,  AK Statutes § 18.16.050,
Arizona,  Criminal Code § 13-3603.01,
Arkansas,  AR Code Annotated § 5-61-203
Florida, FS § 390.001
Georgia,  GC 16-12-144
Illinois,  IL Statutes Chapt. 720, § 513
Indiana,  IC 16-34-2-1
Kansas  65-6721
Louisiana,  LA R.S. 14:32.9
Michigan,  MCL 333.17016 & MCL 33.17516
Missouri ST 565.300
Mississippi,  Miss. Code 1972, § 41-41-73
Montana,  MC § 50-20-109,
Nebraska,  NE ST § 28-326, 328
New Jersey,  NJ Statutes Title 2A, Chapt. 65A
Ohio,  Ohio Revised Code § 2919.15
Rhode Island,  RI Statutes § 23-4.12
South Carolina,  SC Code 1976 § 44-41-85
South Dakota,  SDCL 34-23A-27
Tennessee,  TC § 39-15-209
Utah,  UC 1953 § 76-7-310.5
Virginia, VC § 18.2-74.2

[Findlaw.com is a great source for statutory texts, though not always perfectly current.]

   More bills are pending in other states.  The Federal Bill, "The Partial-Birth Abortion Ban Act," which, while it has become the model for most of the state laws, has been repeatedly vetoed and attempted overrides have consistently failed in the Senate.  Below are some texts selected to provide a cross-section of the different statutes.  The Michigan and Federal bills represent the typical of language used by most of the statutes.  Ohio, Louisiana and Utah are the more unusual statutes, employing language significantly different from their piers.  Missouri's § 565.300 represents a significant departure from the previous legislation in this area.  It creates a crime called "infanticide" defined as "caus[ing] the death of a living infant with the purpose to cause said death by an overt act performed when the infant is partially born or born." [See below.]

Ohio: ORC 2919.15  Enjoined by Women's Medical  

Utah: § 76-7-310.5  

Louisiana: § 32.9  

Michigan: HB 5889
Statute enjoined by Evans v. Kelly, 977 F.Supp. 1283 (E.D. Mich. 1997).  

Missouri: § 565.300

Proposed Federal:

Partial-Birth Abortion Ban Act of 1995 (HR 1833)

The failed 1997 version is different in certain ways.

The 1999 bill has passed both houses of Congress. A veto is expected.

Full Text of Judiciary Report on HR 1833

A Senate RPC policy paper concisely details the history and purpose of this bill from the drafters' perspective.

A memo by Lawrence Tribe reflects the concerns of the bills opponents.

An article in the Bergen Record criticizes the approach of both sides.

Q: Is "partial-birth" "born" for Constitutional purposes?

   Supporters of the bans have argued that this procedure is not so much abortion as infanticide, which is constitutionally proscribable.  If the partial breech delivery used in the procedure is a "birth" for constitutional purposes, then a constitutional person exists and has the usual contingent of rights.  Opponents of the law reject this idea and focus on the fact that other abortion procedures traditionally upheld by the Court can involve the delivery or partial delivery of a live non-viable fetus that dies as a result of the procedure.  They argue that the procedure is not materially different from other later-term abortions and these laws are only designed to hamper women in the exercise of their constitutionally protected liberties.  Supporters of the law argue that "born is born" and neither the Supreme Court nor the Constitution has offered a definition of the word as yet. 

   [Even if the delivery during the procedure was a "constitutional birth," would it make a difference if the child was not viable?]

   It may be significant that the State of Texas had a law, Penal Code § 1195, criminalizing the killing a fetus "in the state of being born" that went unchallenged in Roe v. Wade, but was discussed in certain passages in the oral argument in Roe.  In these passages the Roe Court--or at least Justice Marshall--seems to regard "partial-birth" situations as being different from abortion.  This statute, dating from 1879, is still on the books in Texas as Art. 4512.5 of the Public Health Law and its wording is unchanged:

"Art. 4512.5. Destroying unborn child

Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years."

Missouri's § 565.300 presses this logic and represents a significant departure from the previous legislation in this area.  It creates a crime called "infanticide" defined as "caus[ing] the death of a living infant with the purpose to cause said death by an overt act performed when the infant is partially born or born." It is significant in two respects:  

    (1)  It is far more explicit in it's definition of what "partial[] b[irth]" is.  Previous statutes have been struck down because their language was sometimes interpreted to include more common abortion procedures.  

    (2)  It closely (and intentionally) ties this type of abortion with conventional infanticide.  This keys in with the claims of the procedure's detractors that the two should be treated the same--and in this statute they are treated the same:  "Infanticide" is a Class A Felony, which is the same as murder in that state.

What Could Be Next?

    If the bans continue down this path, we are likely to see a bill which does nothing more than modify the definition of "person" for the purpose of a state's murder statute.  

Such a statute could read (barrowing from the language Missouri act):

"Person," when referring to the victim of a murder or homicide, means a human being who is alive and has been substantially born. 

"Substantially born" means delivery from the mother such that the head, in a cephalic presentation, or any part of the torso above the navel, in a breech presentation, is outside the mother's external cervical os, or outside of her external abdominal wall in the case of a caesarian delivery.

   Such a statute would purport to treat the partially delivered and fully delivered child identically.  However, such a statute cannot redefine 14th Amendment personhood.  Regardless of the state legislature's intent, it is up to the U.S. Supreme Court to determine what "constitutional birth" is.  If the Court concludes that complete delivery is a sine qua non for constitutional personhood then statutes like this would be unconstitutional under Casey and Doe if they unduly burden a woman's abortion decision before viability or the availability of abortions justified by health.  

    As more of these statutes come on the scene and are litigated the Supreme Court will come under pressure to examine these procedure-based bans the way they examined saline abortion bans in Danforth.  The outcome with the Court's current or future composition is not certain.

Updated:  3.III.00

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