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    Thursday, April 26, 2007

    Choosing Life: The poobahs at the New England Journal of Medicine are not happy about the recent Supreme Court decision to uphold a legislative ban on partial-birth abortion. They've published op-eds by a Guttmacher Institute and editor of the Journal. The former's is called the "Partial Death of Abortion Rights" and the latter is "The Intimidation of American Physicians." In the first we learn that it is not in society's best interest to a defenseless life:

    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."


    Are partial birth abortions ever done pre-viability? Some part of this confusion is the language. Partial birth abortion, as banned in the law passed by Congress, refers to delivering a baby, or if you prefer, a fetus, then collapsing its skull so it fits easily through the opening of the birth canal. Sometimes, the fetus is killed chemically first, before the delivery is performed. But "dilation and evacuation" the "D&X" doesn't necessarily involve those steps. It just means dilating the cervix and extracting the fetus. A small fetus doesn't have to be crushed. Don't believe me? Here's the summary of the case which describes exactly which type of procedure the Supreme Court considered:

    The procedure that prompted the federal Act and various state statutes, including Nebraska’s, is a variation of the standard D&E, and is herein referred to as “intact D&E.” The main difference between the two procedures is that in intact D&E a doctor extracts the fetus intact or largely intact with only a few passes, pulling out its entire body instead of ripping it apart. In order to allow the head to pass through the cervix, the doctor typically pierces or crushes the skull.

    ...It defines "partial-birth abortion," §1531(b)(1), as a procedure in which the doctor: “(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the [mother’s] body … , or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the [mother’s] body … , for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus”; and "(B) performs the overt act, other than completion of delivery, that kills the fetus."


    To give you an idea of how political rather than medical this issue is, note that a PubMed search for the procedure turns up more articles on the politicolegal aspect of it than on its medical aspects. If you search for "intact dilation and extraction indications" you get no articles. [ed. note- For the first link type or cut and paste "intact dilation and extraction" for the second type "intact dilation and extraction indications"]

    But back to the New England Journal and the intimidation of American physicians:

    The ruling creates an intimidating environment surrounding pregnancy terminations at more advanced gestational ages. The decision to pursue a second-trimester abortion is never taken lightly and usually results only after anguished discussions among the patient, her loved ones, and her health care providers. Once the decision has been made to perform a second-trimester surgical abortion, the last thing a provider needs is to have to worry that the procedure could potentially evolve into a criminal act if a fetus in breech presentation should slip out intact through a partially dilated cervix. But this is exactly the situation created by the partial-birth abortion bill.

    Defenders of the law point out that its scienter requirement means that physicians can be prosecuted only if it can be demonstrated that the provider "deliberately and intentionally" delivered a living fetus and performed an "overt act" to kill it. But this protection seems fragile to practitioners. In the situation just described, how would the vital status of the partially delivered fetus be determined, and by whom? The only way to complete the delivery through the incompletely dilated cervix may be to reduce the size of the after-coming head. Would any procedure to accomplish that goal be seen as facilitating the delivery? Or as intentionally killing the fetus? Once the prosecutor knocks on the door, the onus will be on the physician to show that there was no intent to perform a banned procedure. Lacking confidence in the judicial system, physicians may choose to avoid performing second-trimester surgical abortions, thus restricting access to them, perhaps even if the mother's life is in jeopardy.


    He's got a point about the fear of public prosecutors. We all know how much unchecked power they wield, but it does appear that abortion doctors are still allowed to perform abortions as long as they kill the fetus before they try to deliver it. In the second trimester they can prove that with fetal heart rate monitoring.

    And then there's this sentence which casts doubt on the author's reliability:

    In recent years, our government has restricted women's options for preventing conception and now for coping with pregnancies that threaten their health or are simply unplanned and undesired.

    What restricted options is he talking about? The "morning after" pill is available at pharmacies - without a prescription. Or is he referring to contraceptives that have been pulled from the market because of side effects and complications, such as some forms of the IUD? That's an entirely different situation, related more to our society's unwillingness to accept risks and our propensity to sue for damages.

    Interesting that at the New England Journal that standard bearer for American medicine around the world, there's no equal space given to physicians who believe that a life unable to defend itself is worth defending. We'll have to wait for the letters to the editor to appear before their voices are heard.
     

    posted by Sydney on 4/26/2007 08:40:00 AM 5 comments

    5 Comments:

    The situation could be worse than NEJM described. The law does not prohibit a procedure by name. It criminalizes any abortion where the fetus is killed after either head and shoulders or legs and hips exit the cervix. The attempt made to amend it to apply only to viable fetuses was defeated. So it clearly applies to non-viable fetuses.

    In a first trimester D&C, can you show that the fetus died before removal? An ambitious prosecutor could argue otherwise. Non-viability of first trimester is not a defense.

    I was very disappointed that the viability amendment was rejected. That made it clear that the target was not partial birth abortion. Those are viable fetuses. The target was much more than that.

    By Anonymous rjh, at 2:54 PM  

    RJH,

    I think you are mistaken. Here is the language of the law:

    (1) the term “partial-birth abortion” means an abortion in which the person performing the abortion—
    (A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and

    (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus;


    The cervix isn't outside the mother's body. This clearly refers to delivering a portion of a live fetus outside the birth canal and reaching into the vagina to kill it before it's completely delivered. The phrase "other than completion of delivery" covers the situation you are referring to. It isn't illegal to deliver a second trimester fetus intact. You just can't kill it as it's emerging from the birth canal. That shouldn't be a problem for a non-viable fetus. It does, however, create a dilemma for a doctor delivering a viable fetus. At least if his primary reason for delivering it is to kill it.

    By Blogger sydney, at 8:55 AM  

    Interesting that at the New England Journal that standard bearer for American medicine around the world, there's no equal space given to physicians who believe that a life unable to defend itself is worth defending.

    To be relevant to the topic at hand--the SCOTUS ruling--equal space would have to be given to physicians who can defend, with evidence (not belief), the court's decision that allowing politicians and lawyers to dictate clinical care should be the way medicine is practiced.

    And to be clear, the law doesn't ban "partial-birth" abortion (whatever that might be). It declares dismemberment the standard of care, and bans intact extractions mainly because politicians find fetal skull reduction icky. [Of course, whether the fetus is dismembered or removed intact is irrelevant; you still need to reduce the size of the skull to effect delivery.]

    Also, just so your readers don't get the impression that your assertion that this issue is political rather than medical is accurate, here are some studies for those interested:

    - Stephen T. Chasen et al., Obstetric outcomes after surgical abortion at 20 weeks gestation, 193 Am. J. of Obstetrics & Gynecology, 1161-64 (2005)

    - Stephen T. Chasen et al., Dilation and evacuation at 20
    weeks: Comparison of operative techniques
    , 190 Am. J. of
    Obstetrics & Gynecology, 1180-83 (2004)

    - Phillip G. Stubblefield et al., Methods for Induced Abortion, 104 Obstetrics
    & Gynecology 174-85 (July 2004)

    - David A. Grimes,
    The Continuing Need for Late Abortions, 280 JAMA 747-50
    (Aug. 26, 1998)

    Finally, just because you're not familiar with recent government restrictions on women's options for preventing conception doesn't mean the author's reliability is in doubt. [Restricting OTC access to ECPs to those 18 yo and over is a political decision, not a medical one.]

    By Blogger ema, at 12:03 AM  

    EMA,

    In the SCOTUS decision the politicians and lawyers aren't dictating the way medicine should be practiced. They're exercising the duty of government and the law to protect the lives of defenseless citizens. Medicine can be used in many ways to terminate unwanted life. The argument here is when it should be allowed. The partial birth abortion ban, makes that explicitly clear. The politicians and lawyers have decided that a living fetus half in the birth canal and half out is a citizen worthy of protection, as opposed to a living fetus in a uterus or a dead fetus in the birth canal.

    There are many ways that medicine can be used to terminate undesirable life. Medical techniques are used to kill prisoners. However, I very much doubt that there would be editorials in our leading medical journals defending lethal injection or a physician's right to use it should the court decide it's inhumane.

    My point about the PubMed search is that the search results return overwhelmingly for political articles rather than medical articles, indicating that the political aspect is far more important in the literature than the medical aspect. The fact that there are some medical papers on the subject doesn't negate that fact. As an example, do a PubMed searh on "emergency contraception" and you will get articles about the medical aspects than the political or legal aspects.

    For readers, here are the links to the abstracts of the articles mentioned in the comment:

    Obstetric outcomes after surgical abortion at > or = 20 weeks' gestation - this one looks at complications in subsequent pregnancies after later term abortions. It doesn't distinguish between dilation (legal) and extraction and intact dilation and extraction (i.e. the banned "partial-birth" technique)

    Dilation and evacuation at >or=20 weeks: comparison of operative techniques:

    Spontaneous preterm birth occurred in 2 of 17 (11.8%) pregnancies in the intact dilation and extraction group, compared with 2 of 45 (4.4%) in the dilation and evacuation group (P=.30)

    Methods for Induced Abortion- a review of abortion techniques at all stages of pregnancy.

    The continuing need for late abortions.- no abstract available, which means it's an opinion piece or commentary, not a research paper.

    Finally, the issue of restricting a minor's access to emergency contraception isn't a medical decision. It is rightfully a legal decision. As a parent, I took that for granted. It wasn't something I was "unaware of."

    By Blogger sydney, at 9:10 AM  

    sydney,

    [Thank you for adding the links.]

    The argument here is when it [terminating an unwanted life] should be allowed. The partial birth abortion ban, makes that explicitly clear. The politicians and lawyers have decided that a living fetus half in the birth canal and half out is a citizen worthy of protection, as opposed to a living fetus in a uterus or a dead fetus in the birth canal.

    No, that's not the argument The "partial-birth" abortion ban does not regulate when to terminate an unwanted pregnancy, only how to terminate it. The politicians and lawyers decided no such thing. It's still perfectly legal to reduce the size of the skull of a living fetus half in the birth canal and half out as long as your initial intent was to dismember the fetus.

    There are many ways that medicine can be used to terminate undesirable life. Medical techniques are used to kill prisoners. However, I very much doubt that there would be editorials in our leading medical journals defending lethal injection or a physician's right to use it should the court decide it's inhumane.

    The court did not decide that the technique of fetal skull reduction is inhumane. [You're still able to puncture the skull with both dismemberment and intact extractions.] What the court decided is when it's appropriate to use this particular technique. Since the decision was based on politics/ideology, the editorials are defending our right to practice based on medical evidence. And, unlike you, I have no doubt that when a different bunch of politicians/lawyers comes into power and dictates that we perform forced C/Ss and forced abortions, the editorials will continue to speak out against perverting medicine for political gain.

    My point about the PubMed search is that the search results return overwhelmingly for political articles rather than medical articles, indicating that the political aspect is far more important in the literature than the medical aspect.

    Actually, what that indicates is that PubMed is indexing non-medical sources, like J. Health Law and , Fed. Suppl., and that those sources have specialty-appropriate articles. [Out of 18 total results, 8 are unrelated to D&X, 7 are from non-medical sources, and 3 are from medical journals--Am J Obstet Gynecol. and JAMA.]

    The fact that there are some medical papers on the subject doesn't negate that fact. As an example, do a PubMed searh on "emergency contraception" and you will get articles about the medical aspects than the political or legal aspects.

    What fact? (Your interpretation of the PubMed returns doesn't establish that the medical aspect isn't important in the medical literature. Intact D&X is a relatively simple, established surgical technique, described in the specialty literature, and taught in residency.) Your EC example is faulty. EC is a group of birth control methods (7 different methods, both pills and IUD, varied regimens, different dosages, etc.), while intact D&X is a simple surgical technique variant. Not to mention the fact that politicians have yet to invent an EC method, like they did with the [non-existent] "partial-birth" surgical technique.

    Finally, the issue of restricting a minor's access to emergency contraception isn't a medical decision. It is rightfully a legal decision.

    What do you mean it's not a medical decision? The FDA is supposed to look at the medical evidence and decide the OTC status of a drug. Granted, for this particular drug the FDA ignored the medical evidence and imposed an arbitrary, nonscientific age restriction. But I don't see how this one instance of the FDA caving to political and ideological pressure makes the issue of a drug's OTC status a rightfully legal, rather than medical, issue.

    By Blogger ema, at 5:19 PM  

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