No New Limitations Should be Placed on Late-Term Abortion Procedures

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No New Limitations Should be Placed on Late-Term Abortion Procedures


Like giving birth to a child, when a woman ends her pregnancy during or after the second trimester, she confronts a serious problem. Her cervix will frequently be too small to allow the skull of the human fetus to pass through it. Although terminating a pregnancy in America is safer than childbirth, this "skull-is-too-large" difficulty makes the abortion of a human fetus, like the birth of a human baby, potentially very dangerous to both the life and health of the woman. Our elected representatives have decided that it is never necessary to use a specific surgical technique"partial-birth abortion"to deal with this concern during an abortion. On the contrary, they have banned the procedure.

After giving Congress the respectful consideration it is always due, I find and conclude that the ban is unreasonable and not supported by substantial evidence. In truth, "partial-birth abortions," which are medically known as "intact D&E" or "D&X" procedures, are sometimes necessary to preserve the health of a woman seeking an abortion. While the procedure is infrequently used as a relative matter, when it is needed, the health of women frequently hangs in the balance.

Four examples, out of many, illustrate this point:

  • During the 17th week of gestation, before many physicians are comfortable inducing fetal death by injection prior to beginning a surgical abortion, one of Mr. Ashcroft's expert witnesses conceded that it would be consistent with the standard of care at the University of Michigan Medical School, where she practices, to crush the skull of the living fetus when the body was delivered intact outside the cervix and into the vaginal cavity if the skull was trapped by the cervix and the woman was hemorrhaging. (Tr. 15981602, Test. Dr. Shadigian.)
  • Another of Mr. Ashcroft's expert witnesses, the head of obstetrics and gynecology at Yale, testified on direct examination, and confirmed again on cross-examination, that there are "compelling enough arguments as to [the banned technique's] safety, that I certainly would not want to prohibit its use in my institution." (Tr. 1706 & 1763, Test. Dr. Lockwood.)
  • Another physician, Dr. Phillip D. Darney, the Chief of Obstetrics and Gynecology at San Francisco General Hospital, a major metropolitan hospital that performs 2,000 abortions a year, provided Congress with two very specific examples of abortions at 20 weeks and after (one case presenting with a bleeding placenta previa and clotting disorder and the other with a risk of massive hemorrhage) "in which the 'intact D&E' technique was critical to providing optimal care" and was the "safest technique of pregnancy termination" in those situations. (Ct.'s Ex. 9, Letter to Sen. Feinstein from Dr. Darney, at 100-01.)
  • Still another doctor, who had served on the committee of physicians designated by the American College of Obstetricians and Gynecologists (ACOG) to look into this issue and who holds certifications in biomedical ethics, obstetrics and gynecology, and gynecologic oncology, Dr. Joanna M. Cain, testified that in the case "of cancer of the placenta often diagnosed in the second trimester," where "the least amount of instrumentation possible of the uterine wall is desirable[,] it is much safer for the woman to have an intact D&X to remove the molar pregnancy." (Pls.' Ex. 115, Dep. Dr. Cain, at 177.)

Therefore, I declare the "Partial-Birth Abortion Ban Act of 2003" unconstitutional because it does not allow, and instead prohibits, the use of the procedure when necessary to preserve the health of a woman. In addition, I decide that the ban fails as a result of other constitutional imperfections. As a result, I will also permanently enjoin enforcement of the ban. Importantly, however, because the evidence was sparse regarding postviability, I do not decide whether the law is unconstitutional when the fetus is indisputably viable.


Now, what does Roe guarantee to women?

In the decision of the Supreme Court, the Court found that a woman's reproductive decisions are a privacy right guaranteed by the Constitution. But I have to say that even though this right was granted to women, it was not an unbalanced decision. It was a very moderate decision. That is why, in my opinion, the majority of Americans support it.

In the early stages of a pregnancy, the Government cannot intervene with a woman's right to choose. That is it, plain and simple. Guess what. We are not going to be big brother or sister, as the case may be. We are going to allow a woman, her doctor, and her God to make that decision.

But in the later stages of pregnancy, Roe found that the Government can intervene, that it can regulate, that it can restrict abortion. We all support that. All of us support that. But there is one caveatalways, always, always. Any law that a State may pass to restrict abortion rights has to have an exception to protect the life of the woman or to protect her health.

This is important because, I have to tell you, Roe, before 1973and I remember those yearslife for women was very different. Before Roe, up to 1.2 million women each year resorted to dangerous illegal abortions. According to one estimate, at least 5,000 women a year died as a result of botched illegal abortions. Thousands of others nearly died, became infertile, or suffered other health complications.

So the point is that when the Court made this historic decision called Roe v. Wade, women were dying, maybe 5,000 a year. And you ask me, why would people, lawmakers, want to see us go back to those days? I will tell you right now, I don't understand it. It isn't right. It isn't right for the women of this country. It isn't right for the families of this country. Roe v. Wade was a balanced decision.

Then you have a situation where we wish we had more family planning funds because then we would be in a situation where we would not have these unwanted pregnancies. The same people who want to outlaw abortion are not interested in family planning funds. And interestingly, the same people who want to go back to the days when abortion was illegal, who will fight for the right of the fetus over the right of a woman, where are they, sometimes, on preschool programs, afterschool programs, caring for our children, helping our children? A lot of times they do not vote for it. As a friend of mine once said, he sometimes thinks that some of our colleagues who take this position, and then don't help the kids, are all for the kids between conception and birth; and then where are they?

So the reason we are here tonight is because the House is so radical on the point that they will not accept our language, that simply says: The decision of the Supreme Court in Roe was appropriate and secures an important right, and such decision should not be overturned.

Imagine, they say they want S. 3 so badly, they want to outlaw this medical procedure, which is the first time an accepted medical procedure is outlawed by politicians, but yet they cannot accept this language, which has no force of law. That is the incredible thing. It is a sense of the Senate. It does not even have the force of law, but it shows you that the goal here is not simply outlawing this one procedure; it is overturning Roe. I cannot say that enough because that is absolutely true, even when 80 percent of the people said that whether to have an abortion is a decision to be made between a woman and her doctor.

This debate is very serious. It is very serious because the underlying bill, S. 3, which bans this procedure, makes no exception for the health of the woman, and we tried every which way to do that. We said: Roe is the law of the land. Under Roe, the life and the health of a woman must always be protected. So in order to be constitutional, we are willing to walk hand in hand with you, and we will ban this procedure, even though some of us believe we should not get into playing doctorthat is not our role. There is no OB/GYN in this body. People don't come to us when they are sick. They come to us when they are sick and tired of politics, but they don't come to us when they are physically ill.

We were willingthose of us who are very prochoiceto say: We will accept this if you will have an exception for the life and the health of a woman. Oh, no. They would not do it. That is why our language on Roe, that we attached to this bill, is so important. Because, folks, this bill, when it becomes lawand it will become lawis going straight to the Court.

We want the Court to understand we stood firmly for Roe. When they take a look at the outlawing of this procedure, and when they see there is no exception for the health of a woman, they will realize maybe some people voted for it who would have preferred a health exception. By showing them we have the votes to sustain a sense of the Senate in favor of Roe, we will be sending a strong signal on behalf of the women of this Nation to the courts.


The American Medical Women's Association (AMWA) strongly opposes HR 760, the "Partial-Birth Abortion Ban Act of 2003." While the Association has high respect for each member and their right to hold whatever moral, religious and philosophical beliefs his or her conscience dictates, as an organization of 10,000 women physicians and medical students dedicated to promoting women's health and advancing women in medicine, we believe HR 760 is unconscionable.

AMWA has long been an advocate for women's access to reproductive health care. As such, we recognize this legislation as an attempt to ban a procedure that in some circumstances is the safest and most appropriate alternative available to save the life and health of the woman. Furthermore, this bill violates the privilege of a patient in consultation with her physician to make the most appropriate decisions regarding her specific health circumstances.

AMWA opposes legislation such as HR 760 as inappropriate intervention in the decision-making relationship between physician and patient. The definition of the bill is too imprecise and it includes non-medical terminology for a procedure that may ultimately undermine the legality of other techniques in obstetrics and gynecology used in both abortion and non-abortion situations. At times, the use of these techniques is essential to the lives and health of women. The potential of this ban to criminalize certain obstetrics and gynecology techniques ultimately interferes with the quality of health and lives of women. Furthermore, the current ban fails to meet the provisions set forth by the Supreme Court in Stenberg v. Carhart, a ruling that overturned a Nebraska statute banning abortion because it contained no life and health exception for the mother.

AMWA's position on this bill corresponds to the position statement of the organization on abortion and reproductive health services to women and their families.

AMWA believes that the prevention of unintended pregnancies through access to contraception and education is the best option available for reducing the abortion rate in the United States. Legislative bans for procedures that use recognized obstetrics and gynecological techniques fails to protect the health and safety of women and their children, nor will it improve the lives of women and their families.


On behalf of the American Public Health Association (APHA)[,] the largest and oldest organization of public health professionals in the nation, representing more than 50,000 members from over 50 public health occupations, I write to urge your opposition to H.R. 760, the Partial-Birth Abortion Ban Act of 2003.

APHA has long-standing policy regarding the sanctity of the provider-patient relationship and has long advocated for a [woman's] right to choose from a full range of reproductive health options. We believe that a physician in consultation with the patient should make the decision regarding what method should be used to terminate a pregnancy.

We are opposed to H.R. 760 because we believe this and other legislative and judicial restrictions to safe, medically accepted abortion procedures severely jeopardize women's health and well-being. APHA also opposes the bill because it fails to include adequate health exception language in instances where certain procedures may be determined by a physician to be the best or most appropriate to preserve the health of the woman. We urge members of the House of Representatives to oppose this legislation.

Thank you for your attention to our concerns regarding the negative effect this legislation would have to a woman's right to a safe, legal abortion.


I understand that you will be considering Senate S. 3, the ban on abortion procedures, soon and would like to offer some medical information that may assist you in your efforts. Important stakes for women's health are involved: if Congress enacts such a sweeping ban, the result could effectively ban safe and common, pre-viability abortion procedures.

The criminal ban being considered is flawed in a number of respects: it fails to protect women's health by omitting an exception for women's health; it menaces medical practice with the threat of criminal prosecution; it encompasses a range of abortion procedures; and it leaves women in need of second trimester abortions with far less safe medical options: hysterotomy (similar to a cesarean section) and hysterectomy.

The proposed ban would potentially encompass several abortion methods, including dilation and extraction (d&x, sometimes referred to as "intact d&e"), dilation and evacuation (d&e), the most common second-trimester procedure. In addition, such a ban could also apply to induction methods. Even if a physician is using induction as the primary method for abortion, he or she may not be able to assure that the procedure could be effected without running afoul of the proposed ban. A likely outcome if this legislation is enacted and enforced is that physicians will fear criminal prosecution for any second trimester abortionand women will have no choice but to carry pregnancies to term despite the risks to their health. It would be a sad day for medicine if Congress decides that hysterotomy, hysterectomy, or unsafe continuation of pregnancy are women's only available options. Williams Obstetrics, one of the leading medical texts in Obstetrics and Gynecology, has this to say about the hysterotomy "option" that the bill leaves open: "Nottage and Liston (1975), based on a review of 700 hysterotomies, rightfully concluded that the operation is outdated as a routine method for terminating pregnancy." Cunningham and McDonald, et al, Williams Obstetrics, 19th ed., (1993), p. 683.

Obviously, allowing women to have a hysterectomy means that Congress is authorizing women to have an abortion at the price of their future fertility, and with the added risks and costs of major surgery. In sum, the options left open are less safe for women who need an abortion after the first trimester of pregnancy.

I'd like to focus my attention on that subset of the women affected by this bill who face grievous underlying medical conditions. To be sure, these are not the majority of women who will be affected by this legislation, but the grave health conditions that could be worsened by this bill illustrate how sweeping the legislation is.

Take for instance women who face hypertensive disorders such as eclampsiaconvulsions precipitated by pregnancy-induced or aggravated hypertension (high blood pressure). This, along with infection and hemorrhage, is one of the most common causes of maternal death. With eclampsia, the kidneys and liver may be affected, and in some cases, if the woman is not provided an abortion, her liver could rupture, she could suffer a stroke, brain damage, or coma. Hypertensive disorders are conditions that can develop over time or spiral out of control in short order, and doctors must be given the latitude to terminate a pregnancy if necessary in the safest possible manner.

If the safest medical procedures are not available to terminate a pregnancy, severe adverse health consequences are possible for some women who have underlying medical conditions necessitating a termination of their pregnancies, including: death (risk of death higher with less safe abortion methods); infertility; paralysis; coma; stroke; hemorrhage; brain damage; infection; liver damage; and kidney damage.

Legislation forcing doctors to forego medically indicated abortions or to use less safe but politically-palatable procedures is simply unacceptable for women's health.


We are writing to urge you to stand in defense of women's reproductive health and vote against S. 3, legislation regarding so-called "partial birth" abortion.

We are practicing obstetrician-gynecologists, and academics in obstetrics, gynecology and women's health. We believe it is imperative that those who perform terminations and manage the pre- and post-operative care of women receiving abortions are given a voice in a debate that has largely ignored the two groups whose lives would be most affected by this legislation: physicians and patients.

It is misguided and unprincipled for lawmakers to legislate medicine. We all want safe and effective medical procedures for women; on that there is no dispute. However, the business of medicine is not always palatable to those who do not practice it on a regular basis. The description of a number of proceduresfrom liposuction to cardiac surgerymay seem distasteful to some, and even repugnant to others. When physicians analyze and debate surgical techniques among themselves, it is always for the best interest of the patient. Abortion is proven to be one of the safest procedures in medicine, significantly safer than childbirth, and in fact has saved numerous women's lives.

While we can argue as to why this legislation is dangerous, deceptive and unconstitutionaland it isthe fact of the matter is that the text of the bill is so vague and misleading that there is a great need to correct the misconceptions around abortion safety and technique. It is wrong to assume that a specific procedure is never needed; what is required is the safest option for the patient, and that varies from case to case.

(1) So-called "partial birth" abortion does not exist. There is no mention of the term "partial birth" abortion in any medical literature. Physicians are never taught a technique called "partial birth" abortion and therefore are unable to medically define the procedure.

What is described in this legislation, however, could ban all abortions. "What this bill describes, albeit in non-medical terms, can be interpreted as any abortion," stated one of our physician members. "Medicine is an art as much as it is a science; although there is a standard of care, each procedureand indeed each womanis different. The wording here could apply to any patient." The bill's language is too vague to be useful; in fact, it is so vague as to be harmful. It is intentionally unclear and deceptive.

(2) Physicians need to have all medical options available in order to provide the best medical care possible. Tying the hands of physicians endangers the health of patients. It is unethical and dangerous for legislators to dictate specific surgical procedures. Until a surgeon examines the patient, she does not necessarily know which technique or procedure would be in the patient's best interest. Banning procedures puts women's health at risk.

(3) Politicians should not legislate medicine. To do so would violate the sanctity and legality of the physician-patient relationship. The right to have an abortion is constitutionally-protected. To falsify scientific evidence in an attempt to deny women that right is unconscionable and dangerous.

The American College of Obstetricians and Gynecology, representing 45,000 ob-gyns, agrees: "The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous."

The American Medical Women's Association, representing 10,000 female physicians, is opposed to an abortion ban because it "represents a serious impingement on the rights of physicians to determine appropriate medical management for individual patients."

We know that there is no such technique as "partial birth" abortion, and we believe this legislation is a thinly-veiled attempt to outlaw all abortions. Those supporting this legislation seem to want to confuse both legislators and the public about which abortion procedures are actually used. Since the greatest confusion seems to center around techniques that are used in the second and third trimesters, we will address those: dilation and evacuation (D&E), dilation and extraction (D&X), instillation, hysterectomy and hysterotomy (commonly known as a c-section).

Dilation and evacuation (D&E) is the standard approach for second-trimester abortions. The only difference between a D&E and a more common, first-trimester vacuum aspiration is the cervix must be further dilated. Morbidity and mortality studies indicate that this surgical method is preferable to labor induction methods (instillation), hysterotomy and hysterectomy.

From the years 197276, labor induction procedures carried a maternal mortality rate of 16.5 (note: all numbers listed are out of 100,000); the corresponding rate for D&E was 10.4. From 197782, labor induction fell to 6.8, but D&E dropped to 3.3. From 198387, induction methods had a 3.5 mortality rate, while D&E fell to 2.9. Although the difference between the methods shrank by the mid-1980s, the use of D&E had already quickly outpaced induction, thus altering the size of the sample.

Morbidity trends indicate that dilation and evacuation is much safer than labor induction procedures, and for women with certain medical conditions, e.g., coronary artery disease or asthma, labor induction can pose serious risks. Rates of major complications from labor induction were more than twice as high as those from D&E. There are instances of women who, after having failed inductions, acquired infections necessitating emergency D&Es, which ultimately saved her fertility and, in some instances, her life. Hysterotomy and hysterectomy, moreover, carry a mortality rate seven times that of induction techniques and ten times that of D&E.

There is a psychological component which makes D&E preferable to labor induction; undergoing difficult, expensive and painful labor for up to two days is extremely emotionally and psychologically draining, much more so than a surgical procedure that can be done in a few hours under general or local anesthesia. Furthermore, labor induction does not always work: Between 15 and 30 percent of cases require surgery to complete the procedure. There is no question that D&E is the safest method of second-trimester abortion.

There is also a technique known as dilation and extraction (D&X). D&X is merely a variant of D&E. There is a dearth of data on D&X as it is an uncommon procedure. However, it is sometimes a physician's preferred method of termination for a number of reasons: it offers a woman the chance to see the intact outcome of a desired pregnancy, thus speeding up the grieving process; it provides a greater chance of acquiring valuable information regarding hereditary illness or fetal anomaly; and there is a decreased risk of injury to the woman, as the procedure is quicker than induction and involves less use of sharp instruments in the uterus, providing a lesser chance of uterine perforations or tears and cervical lacerations.

It is important to note that these procedures are used at varying gestational ages. Neither a D&E nor a D&X is equivalent to a late-term abortion. D&E and D&X are used solely based on the size of the fetus, the health of the woman, and the physician's judgment, and the decision regarding which procedure to use is done on a case-by-case basis.

Because this legislation is so vague, it would outlaw D&E and D&X (and arguably techniques used in the first-trimester). Indeed, the Congressional findingswhich go into detail, albeit in non-medical termsdo not remotely correlate with the language of the bill. This legislation is reckless. The outcome of its passage would undoubtedly be countless deaths and irreversible damage to thousands of women and families. We can safely assert that without D&E and D&X, that is, an enactment of S. 3, we will be returning to the days when an unwanted pregnancy led women to death through illegal and unsafe procedures, self-inflicted abortions, uncontrollable infections and suicide.

The cadre of physicians who provide abortions should be honored, not vilified. They are heroes to millions of women, offering the opportunity of choice and freedom. We urge you to consider scientific data rather than partisan rhetoric when voting on such far-reaching public health legislation. We strongly oppose legislation intended to ban so-called "partial birth" abortion.


In 197326 years ago nowthe Supreme Court affirmed for the first time a woman's right to choose. This landmark decision was carefully crafted to be both balanced and responsible while holding the rights of women in America paramount in reproductive decisions. It is clear that the underlying Santorum bill does not hold the rights of women paramountinstead, it infringes on those rights in the most grievous of circumstances.

Indeed, S. 3 undermines basic tenets of Roe v. Wade, which maintained that women have a constitutional right to an abortion, but after viabilitythe time at which it first becomes realistically possible for fetal life to be maintained outside the women's bodyStates could ban abortions only if they also allowed exceptions for cases in which a woman's life or health is endangered. And the Supreme Court reaffirmed their support for exceptions for health of the mother just 3 years ago.

In Stenberg vs. Carhart, a case involving the constitutionality of Nebraska's partial birth abortion ban statute, the Supreme Court invalidated the Nebraska statute because it lacks an exception for the performance of the D&X dilation and extraction procedure when necessary to protect the health of the mother, and because it imposes an undue burden on a woman's ability to have an abortion. This case was representative of 21 cases throughout the Nation. Regrettably, however, Senator Santorum's legislation disregards both Supreme Court decisions by not providing an exception for the health of the mother and providing only a narrowly defined life exception.

And let there be no mistake I stand here today to reaffirm that no viable fetus should be abortedby any methodunless it is absolutely necessary to protect the life or health of the mother. Period.

During the Senate consideration of this bill earlier this year, I once again cosponsored Senator Durbin's amendment which specifies that postviability abortions would only be lawful if the physician performing the abortion and an independent physician certified in writing that continuation of the pregnancy would threaten the mother's life or risk grievous injury to her physical health. It mirrors laws already on the books in 41 States, including my home State of Maine, which ban postviability abortions while at the same time including life and health exceptions mandated by the Supreme Court under Roe v. Wade.

This amendment, which was tabled during the Senate's debate, would have lowered the number of abortions because it bans all postviability abortions. S. 3, in contrast, will not prevent a single abortion. Sadly, it will force women to choose another, potentially more harmful procedure.

Is this what we really want? To put women's health and lives at risk? And shouldn't these most critical decisions be left to those with medical trainingnot politicians?

The findings in S. 3 would have you believe that this procedure is never necessary to preserve the life or health of the mother and that in fact it poses significant health risks to a woman. This is simply not true. Let me explain why there must be a health exception for "grievous physical injury" in two circumstances.

First, the language was to apply in those heart-wrenching cases where a wanted pregnancy seriously threatens the health of the mother. The language would allow a doctor in these tragic cases to perform an abortion because he or she believes it is critical to preserving the health of a woman facing: peripartal cardiomyopathy, a form of cardiac failure which is often caused by the pregnancy, which can result in death or untreatable heart disease; pre-eclampsia, or high blood pressure which is caused by a pregnancy, which can result in kidney failure, stroke or death; and uterine ruptures which could result in infertility.

Second, the language also applied when a woman has a life-threatening condition which requires life-saving treatment. It applies to those tragic cases, for example, when a woman needs chemotherapy when pregnant, so the families face the terrible choice of continuing the pregnancy or providing life-saving treatment. These conditions include: breast cancer; lymphoma, which has a 50 percent mortality rate if untreated; and primary pulmonary hypertension, which has a 50 percent maternal mortality rate.

Now, I ask my colleagues, who could seriously object under these circumstances?

I cosponsored this amendment because I believed that it was a commonsense approach to a serious problem for American women and a contentious issue for the United States Congress. Unfortunately, the omission of this or any other exemption from this ban in cases when the life of the mother is threatened poses a significant and likely a constitutional problem, and without such an exception, I could not support this conference report.

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No New Limitations Should be Placed on Late-Term Abortion Procedures

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