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The 'partial-birth' debate in 1998.

As the 1998 elections draw near, the Republican-controlled Congress is expected to attempt another over-ride of President Clinton's veto of the so-called Partial-Birth Abortion Act of 1997. After consulting with their religious allies, congressional Republican leaders will no doubt organize such an override attempt to take place on a date determined to have maximum impact on the elections.

Legislation prohibiting this particular type of late-term abortion first passed in the 1996 session of Congress and was vetoed by the president on the grounds that the bill permitted such abortions only if the mother's life were threatened, not if her health were in danger. It then became an issue in the presidential campaign of 1996, leading to new legislation by Congress and another presidential veto in 1997.

Given this continuing threat to reproductive freedom, it is compelling to review a few public cases of women whose lives would have been endangered had this legislation been law at the time of their pregnancies.

VIKKI STELLA from Naperville, Illinois. Parents of two daughters, Vikki and her husband Archer discovered at thirty-two weeks of pregnancy that the fetus had only fluid filling the cranium where its brain should have been, as well as other major problems. The Stellas made "the most loving decision we could have made" to terminate the pregnancy. Because the procedure preserved her fertility, Vikki was able to conceive again. In December 1995, she gave birth to a healthy boy, Nicholas.

MARY-DOROTHY LINE from Los Angeles, California. In the summer of 1995, Mary-Dorothy was told at twenty-one weeks of pregnancy that her fetus had an advanced, textbook case of hydrocephalus -- an excess of fluid on the brain. It was so acute and so advanced that it was untreatable. Practicing Catholics, she and her husband Bill sought a medical miracle but were told that no surgery or therapy could save their baby. Indeed, the medical experts who reviewed the case told her that her own health was at risk, and so the Lines decided to end the pregnancy. Mary-Dorothy was able to become pregnant again and gave birth to a healthy baby girl in September 1996.

COREEN COSTELLO from Agoura, California. In April 1995, seven months pregnant with her third child, Coreen and her husband Jim found out that a lethal neuromuscular disease had left their much-wanted daughter unable to survive. Its body had stiffened and was frozen, wedged in a transverse position. in addition, amniotic fluid had puddled and built up to dangerous levels in Coreen's uterus. Devout Christians and opposed to abortion, the Costellos agonized for over two weeks about their decision and baptized the fetus in utero. Finally, Coreen's increasing health problems forced them to accept the advice of numerous medical experts that the intact dilation and extraction (D&X) was, indeed, the best option for Coreen's own health, and the abortion was performed. Later, in June 1996, Coreen gave birth to a healthy son.

MAUREEN MARY BRITELL from Sandwich, Massachusetts. Maureen and her husband Andrew, practicing Catholics, were expecting their second child in early 1994 when, at six months' gestation, a sonogram revealed that the fetus had anencephaly. No brain was developing, only a brain stem. Experts at the New England Medical Center in Boston confirmed that the fetus the Britells had named Dahlia would not survive. The Britells' parish priest supported their decision to induce labor and terminate the pregnancy. During the delivery, a complication arose and the placenta would not drop. The umbilical cord had to be cut, aborting the fetus while still in delivery in order to prevent serious health risks for Maureen. Dahlia had a Catholic funeral.

CLAUDIA CROWN ADES from Los Angeles, California. In 1992, in the twenty-sixth week of a desperately wanted pregnancy, Claudia and her husband Richard were told after an ultrasound that the male fetus she carried had a genetic condition called trisomy-13. its anomalies included extensive brain damage, serious heart complications, and liver, kidney, and intestinal malformations. Its condition was incompatible with fife. After consulting with many physicians, Claudia and Richard chose the D&X as the medically appropriate procedure for Claudia and the most compassionate procedure for their would-be son.

There are, of course, other cases wherein severely handicapped children would have been born had Congress succeeded in enacting the "partial-birth" legislation. The crucial question is whether medical decisions should be made by qualified physicians or by politicians.

The major medical associations oppose government intervention. The American College of Obstetricians and Gynecologists said, "The physician, in consultation with the patient must choose the most appropriate method based upon the patients individual circumstances." A legislative ban would force doctors in many cases to select what they consider a second-best method in order to avoid criminal prosecution.

Dr. Allan Rosenfield, an obstetrician and dean of New York's Columbia School of Public Health, says, "I am also concerned that the medical community is being used -- and abused -- to further the political agenda of individuals who do not support access to safe, legal abortion. To many this legislation appears to be simply the first step in a `procedure by procedure' attempt to make the constitutional right to choose meaningless." The American Nurses Association concurred, stating, "It is inappropriate for the law to mandate a clinical course of action for a woman who is already faced with an intensely personal and difficult decision."

New Jersey lawyer John Tomasin has proposed that any such ban should include the following language:


(a) If the potential parents and best medical evidence

clearly show that the potential child will probably

be severely handicapped and unable to take care of

itself for the rest of its life, and

(b) The federal government forces the parents to have

said child anyway, and

(c) If said child is in fact born severely

handicapped and unable to take care of itself for the rest

of its life,

(d) Then the federal government shall pay 51 percent of

the costs of taking care of said child for the rest of its

life, and, if the child is institutionalized, the federal

government shall pay 100 percent of said costs, and

(e) If legal action is necessary to enforce such

obligations, interested parties shall recover proper

judgment, plus reasonable legal fees and costs.

Such a proposal, which would almost certainly be rejected, sheds light on the fact that the religious. anti-abortion movement and its congressional allies are concerned only with religious doctrine and not with the consequences of the legislation they advocate and adopt.

This same motive is also responsible for perpetuating false, information about the subject. For example, the term partial-birth abortion, which was used in the House and Senate bills, is not found any medical dictionary or textbook. it is a term that originates in the anti-abortion movement, organized by the Catholic bishops and by the authors of the legislation in response to that movement The Catholic bishops' "Plan for Pro-Life Activities" specifically demands "passage of federal and state laws and adoption of administrative policies that will restrict the practice of abortion as much as is possible."

It is also important to note that the anti-abortion movement always refers to embryos and fetuses as "babies." This is a propaganda device known as prolepsis, which Webster's Dictionary defines as "describing an event as if it has already happened" when, in fact, it may be months away or may never happen. For example, a normal person who eats a fertilized egg does not say, "I have just eaten a chicken," nor is the crushing of an acorn the destruction of an oak tree.

In order to understand the meaning of partial-birth abortion it is essential to note that there are two types of abortion: elective and emergency. An elective abortion, which is chosen by the woman, must take place either in the first trimester (within twelve weeks of pregnancy) or in the second trimester (twenty-four weeks). The Supreme Court has held that a woman is constitutionally entitled to have an abortion of a nonviable fetus for whatever reasons she finds compelling. Therefore, physicians performing second-trimester abortions must first determine that the fetus is too underdeveloped to survive outside the womb.

After twenty-four weeks of pregnancy, which is the approximate date of viability and the beginning of the third trimester, the abortion procedure is not elective but emergency, in that the fetus is gravely or fatally impaired, or the woman's fife or health is at risk, or both.

According to the most recent data, 90 percent of all abortions are performed in the first trimester and 99 percent within twenty weeks, or near the midpoint of the second trimester. No national data are available on abortions past twenty weeks, but the Allan Guttmacher institute has estimated, based on limited data-collected by the Centers for Disease Control and Prevention, that approximately 320 to 600 abortions annually are performed after the twenty-sixth week, hence, in the third trimester of pregnancy.

The term partial-birth abortion was defined in the 1996 legislation as one wherein "the person performing the abortion partially vaginally delivers a living fetus before killing the infant and completing the delivery." The nearest medical term that to some degree meets that definition is an intact dilation and extraction, which involves the deliberate dilation of the cervix, usually over a sequence of days. The fetal body, excepting the head, can then be readily extracted; the fetal head cannot until the doctor reduces the size so it can pass through the fragile and narrow cervical opening. That reduction requires partial evacuation of the intracranial contents.

This raises certain questions. Why is this procedure sometimes necessary? Why not induce labor with drugs? The cervix which holds the uterus closed during pregnancy, is very resistant to dilation until about thirty-six weeks. Inductions done before this time take two to four days and are physically painful. Because of the danger of uterine rupture, the woman requires constant nursing supervision.

Another question: Isn't there another option, such as a cesarean section? A cesarean delivery usually involves twice as much blood loss and, before thirty-four weeks of pregnancy, the lower segment of the uterus is usually too thick to use a standard horizontal incision, so a vertical incision is necessary. Any uterine incision complicates future pregnancy, but a vertical incision jeopardizes both the mother's health and future pregnancies, which would also require a cesarean.

The safest and, hence, better option in some situations is the D&X procedure. Using intravenous anesthesia, the physician can insert small dry cylinders into the cervix that expand gradually as they absorb fluid from the woman. She can usually return home except for twice-daily visits to the clinic or office to be sure that she is dilating and to replace the dilators if required. This, plus a spinal needle to remove some fluid from the fetal head, reduces the chance of lacerating the cervix

There are still other questions, such as why not let the woman wait until the thirty-sixth week and go into labor? Fetuses with severe defects have a high chance of dying in utero well before labor begins and therefore create a serious threat to the mother. When a fetus dies, its tissues begin to break down and enter the mother's bloodstream. This can cause clotting problems, making it more difficult for her to stop bleeding. This may then require a surgical delivery or an emergency hysterectomy.

These and other. problems are the reason the physician -- not the politician -- must be able to exercise judgment as to which method to pursue. The "partial-birth" legislation, however, makes the physician liable to criminal penalties if he or she chooses the D&X method, thus deterring doctors from using such procedures.

Dr. Rosenfield says, "The reasons these abortions are performed late [in the third trimester] is because these women were pursuing wanted pregnancies and then something went terribly wrong" such as "severe fetal abnormality" or serious health threat to the women that developed late in pregnancy.

All abortions require the termination of a fetus, but the government should not require a woman to bear an increased medical risk because one method of abortion may seem more brutal than another. Many medical decisions -- ranging from invasive surgery to amputation -- seem harsh but may be necessary to save a patient's life.

The focus of the original legislation, which President Clinton vetoed in 1996, was on catastrophic third-trimester pregnancies. it should be noted that the ban proposed in 1997 was not limited to the last few weeks of pregnancy, when one might expect a viable birth. Rather, it would ban D&X abortion in the second, as well as the third, trimester. Thus it is intended to ban abortions before viability as well as after viability.

It should be obvious that the abortion of a fetus well before viability cannot be a partial birth, because the fetus could not survive after the procedure. it is also true that some women during the second trimester need an abortion for medical, and not just elective, reasons. They therefore may need the same emergency care as if they were in the third trimester. However, the anti-abortion movement opposes all abortions -- no matter what happens to the woman.

There is at least one other important argument against this legislation: one or a few religious organizations ought not to be able to legislate their religious dogma about abortion into law. If they are unable to persuade their own members not to have an abortion, they ought not use the police power of the state to send physicians to jail to prevent these women from having one. Nor should religious zealots be allowed to coerce women of other religions or no religion to accept their church's dogma. Separation of church and state is always better than theocracy.

John M. Swomley is professor emeritus of social ethics at St. Paul School of Theology and an advisory board member of the Midwest Bioethics Center and the Missouri Family Health Council. He has also team-taught biomedical ethics at Kansas University Medical Center summer seminars and is indebted to Planned Parenthood of Kansas City for access to its files.
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Author:Swomley, John M.
Publication:The Humanist
Date:Mar 1, 1998
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