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Issues 2003

"Dilation and Extraction" (D&X) Abortions (Partial Birth Abortions) Should Be Banned

Table of Contents 

Executive Summary
Abortion - The Last 30 Years
Partial-Birth Abortion Ban In Nebraska Is Unconstitutional Said Supreme Court
How The Supreme Court Came To Their Decision
Conflicting Information about the D&X Procedure 
Who Has Partial-Birth Abortions? 
A Mother’s Considerations
Protecting the Unborn 
Considerations for the Fetus 
Ethical Concerns 
Congress Tries to Make Changes

Executive Summary 

There are absolutely no obstetrical situations encountered in the United States (U.S.) which require a partially delivered human fetus to be destroyed to preserve the life of the mother.  In fact, late-term abortions are detrimental to the health of women.  Since it can lead to cervical incompetence in subsequent pregnancies caused by three days of forceful dilation of the cervix and uterine rupture due to the rotation of the fetus within the womb – this procedure will always be medically risky to the mother.   

This procedure when performed on the unborn infant causes it to suffer pain.  Fully capable of experiencing pain is the fetus within this timeframe of gestation, 20 weeks and beyond.  For any infant subjected to such a surgical procedure all of this is a dreadfully painful experience.  As a result, the banning of late-term abortions is supported by at least two-thirds of the American public. (1) 

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Abortion the Last 30 Years 

January 22, 2003 marks the thirtieth anniversary of the Supreme Court of the United States discussion that legalized abortion in America.  Since this time our nation has become a “culture of death” that kills innocent unborn babies.  According to researchers with the Alan Guttmacher Institute, the number of abortions performed in a year in the U.S. has declined from 1.36 million in 1996 to 1.31 million in 2000.  In the first six months of 2001 there were only an estimated 37,000 early medical abortions done.  A small but significant use of the newly legal chemical process called mifepristone, formerly known as RU-486, was a probably the cause of this reduced number.  However, according to the report on abortion trends released in January 2003, in the past four years the number of “partial-birth” abortions has tripled.  Researchers with the Alan Guttmacher Institute, Lawrence B. Finner and Stanley K. Henshaw who surveyed all known U.S. abortion providers during the past two years estimated that 2,200 D&X abortions were performed. (2)  It is very possible that this figure represents an underestimation of the actual number of these types of abortions that have been done. 

Of the D&X abortions that were performed on fetuses older than 20 weeks – the institute researchers estimated that there had been 650 of these abortions in 1996.  Since in some cases the fetus was old enough to survive outside the womb, opponents of the procedure began to call it partial-birth abortion.  (3) 

The institute researchers indicated that the 2,200 D&X abortions accounted for 0.17 percent of all abortions.  They wrote that the 2,200 figure “should be interpreted cautiously because projections based on such small numbers are subject to error.” 

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Partial-Birth Abortion Ban In Nebraska Is Unconstitutional Said Supreme Court 

Tragically, the Supreme Court ruled that a late-term abortion ban commonly called partial- birth abortion in Nebraska was unconstitutional.  The reason for the 5-4 decision on June 28, 2000, was that it did not include an exception to protect the health of the woman and the language defining the procedure was too broad. (4) The majority opinion said, it presented the woman seeking to terminate her pregnancy with an “undue burden” on her right to choose an abortion. 

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How The Supreme Court Came To Their Decision 

The Supreme Court justices based their opinions in Stenberg on their interpretation of the Court’s 1992 abortion decision Planned Parenthood of Southeastern Pennsylvania v. Casey. (5) 

The court, in that case, held that the 1973 Supreme Court decision, Roe v Wade, which effectively gave women the right to have an abortion prior to the fetus becoming viable after 21 to 24 weeks did not prohibit states from regulating abortions.  This also had been decided by a narrow 5-4 ruling. 

However, the state could only do so if the regulation did not impose an “undue burden” on women seeking to have an abortion prior to fetal viability under Casey.  Except when it was “necessary,” in appropriate medical judgment for the preservation of the life or health of the mother the court held the state could ban later abortions. 

A 1997 Nebraska law that defined the abortion procedure in question as “partially deliver[ing] vaginally a living unborn child before killing the unborn child and completing the delivery,“ was at issue in the Stenberg decision. 

“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,” was prohibited by the law. 

It was held, that Casey required a health exception in an opinion written by Supreme Court Justice Stephen G. Breyer.   Justice Breyer wrote, “[T]his court has made it clear that a state may promote but not endanger a woman’s health when it regulates the methods of abortion…A risk to a woman’s health is the same whether it happens to arise from regulating a particular method of abortion, or from barring abortion entirely.” (6) 

Also, in the Nebraska law the court found the description too vague of the abortion procedure since it did not specify the one type of abortion that opponents said they were trying to ban — the dilation and extraction (D&X) method.  However, the court did find that it could have banned dilation and evacuation (D&E), a far more common type of abortion for pre-viable fetuses.  Justice Breyer wrote, “All those who perform abortion procedures using that [D&E] method must fear prosecution, conviction, and imprisonment.  The result is an undue burden upon a woman’s right to make an abortion decision.” (7) 

Justices Ruth Bader Ginsburg, Sandra Day O’Connor,  John Paul Stevens, and David H. Souter joined Breyer in the majority. Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and  Clarence Thomas dissented.  Justice Kennedy wrote in his own dissent that “Ignoring substantial medical and ethical opinion, the court substitutes its own judgement for the judgement of Nebraska and some 30 other states and sweeps the law away.  The court’s holding stems from misinterpretation of Casey, out-right refusal to respect the law of a state and statutory construction in conflict with settled rules.” (8) 

The decision rather than resting on the Casey decision, obliterated the Casey decision argued Justice Thomas, writing for the other three dissenters.  Justice Thomas wrote, “The rule set forth by the majority…dramatically expands our prior abortion cases and threatens to undo any state regulation of abortion procedures." (9) 

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Conflicting Information about the D&X Procedure 

Because of conflicting information about the intact D&X procedure and its necessity, prominent medical organizations were prompted to evaluate its use (10).  A special committee was convened to review it in 1996 by the American College of Obstetricians and Gynecologists (ACOG).  Intact D&X has been defined to consist of four elements according to the ACOG panel (“ACOG statement of policy.  Approved by the executive board,” January 12, 1997 and distributed to ACOG chairs) :  (A) Usually over a sequence of days the deliberate dilation of the cervix (B) Next a footling breech instrumental conversion of the fetus (C) Then, excepting the head, breech extraction of the body and (D) And, finally the vaginal delivery of a dead but otherwise intact fetus through the partial evacuation of the intercranial contents of a living fetus. 

Emanating from the review, an ACOG policy statement declared that the select panel “could identify no circumstances under which this procedure… would be the only option to save the life or preserve the health of the woman” but that “an intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman’s particular circumstances can make this decision. (11) No specific examples, however  to define the circumstances under which intact D&X would be the most appropriate procedure were furnished by the committee. 

A joint amicus curiae brief in the U.S. Supreme Court case, Stenberg v. Carhart was filed on March 29, 2000, by the American College of Obstetricians and Gynecologist as well as with four other national medical organizations.  Since it prohibits physicians from giving their patients appropriate and necessary medical care, ACOG urged the Supreme Court to affirm a lower court’s ruling that a Nebraska ban on abortion procedure the so-called “partial birth abortion statute” be unconstitutional. (12) 

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Who Has Partial-Birth Abortions? 

As a result of their “lack of money or health insurance, social-psychological crises, lack of knowledge about  human reproduction etc.” many women have late-term abortions. (13)  

Performed on perfectly “healthy babies” are sixty to eighty percent of the partial-birth abortions. Dr Pamela Smith, former Director of Medical Education in the Department of Obstetrics and Gynecology at Mount Sinai Hospital in Chicago told the Senate Judiciary Committee that  22 percent had been performed because of maternal depression, after examining the files of 175 partial-birth abortions which were selected by these who support the procedures.  (14)  Furthermore, simply because the patient requested an abortion Dr. Haskell stated that even at five and one-half months he performed such abortions.  For instance, 80 percent of Dr. Haskell’s late-term abortions were elective according to what he told the American Medical Association.  (15) 

Supporters of partial-birth abortion will try to convince the public that 20-40 percent of these abortions are performed on unhealthy babies that will die shortly.  However, this is not the case.  For example, the Senate Judiciary Committee was told by Dr. Smith from the study sample that he used, that 16 percent of the partial-birth abortion cases he examined were performed because of “conditions consistent with the birth of an abnormal child (e.g. sickle cell trait, prolapsed uterus, small pelvis) It was also found that nine babies were killed simply because they had a cleft lip, a correctable condition.  Also, in one-third of the cases the procedure itself put the mother in serious danger discovered Dr. Smith.  (16) 

A new medical study by prominent medical researchers reported that abortion increases risks of premature delivery, maternal depression, suicide and other serious health consequences for the mother. (17) It was concluded by the authors of the study that more research was required and that women needed to be informed of these and other major long-term health risk associated with abortion. 

The long-term physical and psychological health consequences of abortion were assessed in the study that is published in the January 2003 issue of the Obstetrical & Gynecological Survey (OGS).  Thirty years of medical studies on the long-term medical risks of abortion were analyzed and reviewed by researchers — professors of medicine at the University of North Carolina at Chapel Hill and the University of Michigan. 

A critical need for “a detailed study of the health effects of this common procedure,”  was revealed by the research.  The scientists recommended further study to meet “the clear need for women to have accurate information” about the risks and potential complications of abortion, as they acknowledged that current data is sparse and that current studies are flawed.

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A Mother’s Considerations 

For an intact D&X that evaluates or attests to its safety, there exist no credible studies.  In medical textbooks the procedure is not recognized; nor is it taught in medical schools or in obstetrics and gynecology residencies.  In fact, a risk for potential complications associated with any surgical midtrimester termination that include uterine perforation, infection and hemorrhage is always present for patients who undergo an intact D&X.   

These patients however are placed at increased risk of two additional potential complications by intact D&X.  The first complication is the increased risk of uterine rupture.  An internal podalic version is an integral part of the D&X procedure.  The physician instrumentally reaches into the uterus, grasps the fetus’ feet, and pulls the feet down into the cervix, thus converting the lie to a footling breech during the procedure.  Risk of  abruption, amniotic fluid embolus, rupture and trauma to the uterus is carried by the internal version.  “There are very few, if any, indications for internal podalic version other than for delivery of a second twin,” indicates Williams Obstetrics. (18) 

The risk of iatrogenic laceration and secondary hemorrhage is the second potential complication of intact D&X.  Scissors are forced into the base of the fetal skull while it is lodged in the birth canal following internal version and partial breech extraction.  Maternal injury from laceration of the uterus or cervix by the scissors is risked by this blind procedure and could result in severe bleeding and the threat of shock or even maternal death.  Quantification has not been adequately done for these risks. 

Since other procedures are available to physicians who deem it necessary to perform an abortion late in pregnancy, none of these risks are medically necessary.  Intact D&X is never the only procedure available as ACOG policy states clearly.  When hydrocephalus is present, some clinicians have considered intact D&X necessary.  A hydrocephalic fetus, however, could be aborted by first draining through ultra-sound-guided cephalocentesis, the excess fluid from the fetal skull.  A ban on late abortions which would affect their ability to provide other abortion service is the concern of some physicians who perform abortions.  It is clear that only intact D&X would be banned because of the proposed changes in the federal legislation. 

Partial birth abortion is “potentially dangerous” for women cautions Dr. Warren Hern, former head of the Center for Disease Control’s Abortion Surveillance Unit and recognized expert in abortion practice. (19) 

Another leading expert to indicate that the procedure is never medically necessary to protect a mother’s life or her future fertility has been former Surgeon General C. Evertt Koop.  He has said that, on the contrary, this procedure can pose a significant threat to both. (20) 

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Protecting the Unborn 

At a Risk Management Seminar of the National Abortion Federation, Dr. Haskell presented his paper on the “Dilation and Extraction” (D&X) procedure in 1992. (21) 

Dr. Haskell, when asked whether the fetus was dead beforehand, in an interview with the American Medical News, stated: “No it’s not.  No, it’s really not.  A percentage are for various number of reasons….And so in my case, I would think probably about a third of those are definitely [sic] dead before I actually start to remove the fetus.  And probably the other two-thirds are not.” (22) 

Currently more Americans are in favor of restoring legal protection for unborn children.  A Wirthlin Worldwide poll taken in December 2002, asked some 1,000 randomly selected adults whether in light of medical advances that reveal the unborn child’s body and facial features in detail, “Are you in favor of restoring legal protection for the unborn?”  Sixty-eight percent of the adults responded that they were in favor of legal protection and 44 percent said they were in strong agreement of such action. (23) 

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Considerations for the Fetus 

Early in the second trimester, the center necessary for pain perception develops (24).  Acute stress in the fetus is indexed by blood flow redistribution to the brain, as demonstrated by Doppler studies of human fetuses of at least 18 weeks’ gestation undergoing invasive procedures that involve penetration of the fetal trunk, although fetal pain cannot be measured.(25)

Measured from as early as 23 weeks’ gestation are fetal hormonal stress responses to needling of the intra-abdominal portion of the umbilical vein. (26) 

Performed on periviable fetuses are the majority of intact D&X procedures.  Pain management is an important part of the care rendered in the intensive care nursery to infants of similar gestational ages when delivered.  With intact D&X however pain management is not provided for the fetus, who is literally within inches of being delivered.  Certainly excruciating pain must be felt by the force of incising the cranium with a scissors and then suctioning out the intracranial contents.  Federal standards for the humane care of animals used in medical research would not be met by the pain management practiced for an intact D&X on a human fetus. (27)  As a means of terminating a pregnancy, the needlessly inhumane treatment of perivable fetuses argues against intact D&X. 

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Ethical Concerns 

Questions of the potential viability of the fetus have arisen since intact D&X is most commonly performed between 20 and 24 weeks. 

A 15 percent viability rate at 23 weeks gestation, 56 percent at 24 weeks and 79 percent at 25 weeks was indicated from information from 1988 through 1991. (28)  An 83 percent survival rate at 24 weeks and an 89 percent survival rate at 25 weeks was indicated from recent data. 

Many pro-choice organizations and individuals assert beyond the argument of potential viability that a woman should maintain control over that which is part of her own body (i.e., the autonomy argument).  Becoming relevant is the physical position of the fetus with respect to the mother’s body in this context.   The autonomy argument however is invalid once the fetus is outside the woman’s body.  Literally delivering the fetus so that only the head remains within the cervix is the intact D&X procedure.  The fetus, at this juncture, is merely inches from being delivered and under the U.S. Constitution obtains full legal rights of personhood.  As must occasionally occur during the performance of an intact D&X the fetal head inadvertently slips out of the mother and a live infant is fully delivered.   To ethically justify its continued use, many otherwise pro-choice individuals have found intact D&X too close to infanticide for this reason. 

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Congress Tries to Make Changes 

Legislation to ban the procedure, in which the baby is partially delivered and then its skull is punctured was passed twice by Congress in 1996 and 1997.  Each time former President Clinton vetoed the ban. Last year the House of Representatives again passed the measure, however the measure was never take up by the Democrat-controlled Senate.  (29) 

Former Congressman Tom Coburn (Republican-Oklahoma) is a practicing physician who has delivered more than 3,500 babies.  During debate of the Partial-Birth Abortion Ban Act of 2000 (30) he indicated that “partial birth abortion is done only for the abortionist, not for the woman.”  He said, “They would terminate the pregnancy in a very much different way.  They would not put at risk her reproductive future.  They would not put her at risk of pulmonary embolism from amniotic fluid; they would not put at risk the ability for her cervix to maintain its muscular strength by dilating it against its will.   

“Partial birth abortion in this country is not being done for the health of the women.  It is being done for the convenience of the abortion.  That is number one.  Number two, it is not being done because children have lethal defects.  It is being done so that late-term abortions can be accomplished.  That is why it is being done.  Number three, this procedure puts the health of a women at much greater risk than any of three other procedures that could be used to terminate her pregnancy.” (31) 

Later in the floor debate Representative Coburn indicated that the vast majority, upwards of 90 percent of all partial-birth abortions are on absolutely normal, not abnormal, babies.  He said, “To couch partial birth abortion on the basis of one or two percent of those issues, and that is what you are really talking about, one or two percent, not the vast majority, to justify it as a means to terminate the life of a well, healthy child is unconscionable.”  (32) 

Additionally the congressman said that in this nation, death is defined as the absence of a heartbeat and the absence of brain waves.  He said, “All 50 states, every territory, upheld by the Supreme Court."  The representative added, “If that is death, let me tell my colleagues what the opposite is: present heartbeat, present brain waves.  That is life.  I say to my colleagues, at 41 days past the last menstrual period every fetus has a heartbeat and brain waves.” (33) 

The Presence of Life Resolution was introduced on April 12, 2000, by Representative Coburn.  It specified the time during gestation when it is definitively known that life is present based on medical and legal definitions. 

This resolution stated that human life is present when a heartbeat and brain waves are detectable.  The Supreme Court in Roe v. Wade had asked when life begins but decided it could not answer what it called “that difficult question.”   A human heartbeat is detectable 24 days after conception, and brain waves are detectable within 41 days.  Thus, from this standpoint a baby in the womb deserves Fourteenth Amendment protection. 

Through this argument, Roe v. Wade and its underlying assumption could be taken up again and restricted by legally defining the presence of life.

Recently, Senator Sam Brownback (Kansas-Republican), who is a leading opponent of abortion has said, “We will pass the first significant pro-life legislation actually limiting abortions in 30 years.”  (34) The 108th Congress would move quickly to pass a measure banning partial-birth abortion according to his prediction. 

The Senator said, “We will pass a partial-birth abortion ban.  That’s going to hearten people.  It’s been a long fight.  We’re finally turning some of the battle.”  (35) Also, President George W. Bush has indicated he would sign such a bill. 

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Moral Issues are no doubt brought up in the debate of this inhumane and brutally heinous procedure known as partial-birth abortion.  In terms of human rights as well as human dignity there can be no debate even by pro-choice advocates that such a procedure should be banned.   If such a procedure were used on animals, animal- rights advocates across the world would be outraged and would be calling for the end of its practice.  It is time for people across this nation to call for the end of the “culture of death” that has taken its grip upon this nation for 30 years and begin to promote a “culture of life”.  So many people across this nation wonder and are puzzled why the children of America are becoming more and more violent at younger ages.  One reason for this is that they are just reflecting the actions of adults across this land that have a blatant disregard for life as they murder their unborn babies through abortions.  One way that every American can begin to change America from a “culture of death” to a “culture of life” is to contact their representative and senators and encourage these officials to vote for a ban on partial-birth abortion during the 108th  Congress.  What so many have truly forgotten for so long is how God cannot continue to bless America when as a nation it continues to promote death against the unborn.

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  1. Gallup Organization, April 2000.
  2. Lawrence B. Finner and Stanley K. Henshaw, “Abortion Incidence and Services In the United States in 2000,”  The Alan Guttmacher Institute, January 2003).
  3. Cheryl Wetzstein, “’Partial-birth’ abortions shown increasing,” The Washington Times, January 14, 2003.
  4. Elizabeth A. Palmer, “Supreme Court Abortion Ruling Complicates GOP Efforts To Craft ‘Partial Birth’ Ban,” Congressional Quarterly, July 1, 2000, Volume 58, No. 27.
  5. Elizabeth A. Palmer, “Supreme Court Abortion Ruling Complicates GOP Efforts To Craft ‘Partial Birth’ Ban,” Congressional Quarterly, July 1, 2000, Volume 58, No. 27.
  6. Ibid.
  7. Ibid.
  8. Ibid.
  9. Ibid.
  10. M. LeRoy Sprang and Mark G. Neerhof, Rational for Banning Abortion Late in Pregnancy. The Journal of the American Medical Association,  August 26, 1998, Vol. 280, pp. 744-747.
  11. “ACOG statement of policy.  Approved by the executive board,” January 12, 1997 and distributed to ACOG chairs.
  12. “Statement of The American College of Obstetricians and Gynecologists on the U.S. Supreme Court Abortion Case Stenberg v. Carhart,” ACOG News Release, April 21, 2000.
  13. Cecil Kirk Hutson, Ph.D., ” ‘Dilation And Extraction’ ” Abortions: Medical Procedure or Infanticide,” Assembly Republican Caucus Office of Policy Research, April 1996.
  14. Ibid.
  15. Ibid.
  16. Ibid.
  17. John M. Thorp Jr., MD; Katherine E. Hartmann, MD, PhD; Elizabeth Shadigian, MD; Long-Term Physical and Psychological Health Consequences of Induced Abortion: Review of the Evidence; Obstetrical & Gynecological Survey 58(1): 67-79; Jan 2003.
  18. FG Cunningham, PC MacDonald, NF Gant, et al. Williams Obstetrics.” 20th edition, Stamford, Conn:  Appleton & Lange; 1997:507.
  19. “Partial-Birth Abortion Ban Act of 2000,” House of Representatives, April 5, 2000.
  20. Ibid.
  21. Martin Haskell, “Dilation and Extraction for Late Second Trimester Abortion,” (Paper delivered before the National Abortion Federal Risk Management Seminar, 13 September 1992), 29-31.
  22. Interview with Dr. Martin Haskell, AMA News, 1993
  23. Cheryl Wetzstein, “New poll shows tilt to protect unborn,” The Washington Times, January 16, 2003).
  24. X Giannakoulopoulos, W, Sepulveda, P Kourris. "Fetal plasma cortisol and D-endorphin response to intrauterine needling." Lancet. 1994;344:77-81.
  25. J Teixeria, R Foglioni, X Giannakoulopoulos, et al. "Fetal haemodynamic stress response to invasive procedures." Lancet. 1996; 347:624.
  26. X Giannakoulopoulos, W, Sepulveda, P Kourris. "Fetal plasma cortisol and D-endorphin response to intrauterine needling." Lancet. 1994;344:77-81.
  27. "Report of the American Veterinary Medical Association panel on euthanasia." J Am Vet Med Assoc., 1993;202:229-249.
  28. MC Allen, PK Donohue, AE Dusman, "The limit of viability: neonatal outcome of infants born at 22 to 25 weeks’ gestation."  N Engl J Med. 1993;329:1597-1601.
  29. “Pro-life leaders see opportunity to limit abortion,” The Associated Press, January 20, 2003.
  30. “Partial-Birth Abortion Ban Act of 2000,” House of Representatives, April 5, 2000.
  31. Ibid.
  32. Ibid.
  33. Ibid.
  34. “Pro-life leaders see opportunity to limit abortion,” The Associated Press, January 20, 2003.
  35. Ibid.

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Note: Nothing written here is to be construed as necessarily reflecting the views of the American Voice Institute Of Public Policy or as an attempt to assist or hinder the passage of any bill before Congress.

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