| Background | |
| Abortion type | Surgical |
| First use | 1983 |
| Gestation | >16 weeks |
| Usage | |
| United States | 0.17% (2000) |
| Infobox references | |
Intact dilation and extraction (IDX) is a procedure done in late term abortion. It is also known as intact dilation and evacuation, dilation and extraction (D&X, or DNX), intrauterine cranial decompression and, vernacularly in the United States, as partial birth abortion. The procedure may also be used to remove a fetus that is developed enough to require dilation of the cervix for its extraction.[1]
Though the procedure has had a low rate of use, representing 0.17% (2,232 of 1,313,000) of all abortions in the United States in the year 2000, according to voluntary responses to an Alan Guttmacher Institute survey,[2] it has developed into a focal point of the abortion debate. In the United States, intact dilation and extraction was made illegal in most circumstances by the Partial-Birth Abortion Ban Act, which the U.S. Supreme Court upheld in the case of Gonzales v. Carhart.
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Under the Intact D&X method, the largest part of the fetus (the head) is reduced in diameter to allow vaginal passage. According to the American Medical Association, this procedure has four main elements.[3] Usually, preliminary procedures are performed over a period of two to three days, to gradually dilate the cervix using laminaria tents (sticks of seaweed which absorb fluid and swell). Sometimes drugs such as pitocin, a synthetic form of oxytocin, are used to induce labor. Once the cervix is sufficiently dilated, the doctor uses an ultrasound and forceps to grasp the fetus's leg. The fetus is turned to a breech position, if necessary, and the doctor pulls one or both legs out of the cervix, which some refer to as 'partial birth' of the fetus. The doctor subsequently extracts the rest of the fetus, leaving only the head still inside the uterus. An incision is made at the base of the skull, a blunt dissector (such as a Kelly clamp) is inserted into the incision and opened to widen the opening,[4] and then a suction catheter is inserted into the opening. The brain is suctioned out, which causes the skull to collapse and allows the fetus to pass more easily through the cervix. The placenta is removed and the uterine wall is vacuum aspirated using a cannula.[5]
The term "partial-birth abortion" is primarily used in political discourse — chiefly regarding the legality of abortion in the United States.[6] The term is not recognized as a medical term by the American Medical Association[7] nor the American College of Obstetricians and Gynecologists.[8] This term was first suggested in 1995 by Congressman Charles T. Canady, while developing the original proposed Partial-Birth Abortion Ban.[9][10] According to Keri Folmar, the lawyer responsible for the bill's language, the term was developed in early 1995 in a meeting among herself, Charles T. Canady, and National Right to Life Committee lobbyist Douglas Johnson.[11] Canady could not find this particular abortion practice named in any medical textbook, and therefore he and his aides named it.[12] "Partial-birth abortion" was first used in the media on 4 June 1995 in a Washington Times article covering the bill.
In the U.S., a federal statute defines "partial-birth abortion" as any abortion in which the fetus is extracted "past the navel [of the fetus]... outside the body of the mother," or "in the case of head-first presentation, the entire fetal head is outside the body of the mother," in order to cause death of the fetus. The U.S. Supreme Court has held that the terms "partial-birth abortion" and "intact dilation and extraction" are basically synonymous.[4] However, there are cases where these overlapping terms do not coincide. For example, the IDX procedure may be used to remove a deceased fetus (e.g. due to a miscarriage or feticide) that is developed enough to require dilation of the cervix for its extraction.[1] Removing a dead fetus does not meet the federal legal definition of "partial-birth abortion," which specifies that partial live delivery must precede "the overt act, other than completion of delivery, that kills the partially delivered living fetus."[13] Additionally, a doctor may extract a fetus past the navel and then cut through the neck of the fetus. This could fall within the terms of the statute, even though it would not result in an intact body and therefore would not be an intact dilation and extraction.[11]
In addition to the federal ban, there have also been a number of state partial-birth abortion bans. There, courts have found that state legislation (rather than federal legislation) intended to ban "partial-birth abortions" could be interpreted to apply to some non-intact dilation and evacuation (D&E) procedures.[14] Though sometimes performed during the same developmental stage wherein most IDX procedures are done, non-intact D&E is a separate procedure.
There is debate over use of the term "partial-birth abortion". Those who oppose the term consider it a political term used to frame the argument in a way which is favorable to those who seek greater legal restrictions, or a total ban, on this or all abortion procedures, and have called the alleged political framing "partial truth abortion".[15]
IDX is a target of pro-life advocates who believe the procedure illustrates their contention that abortion, and especially late-term abortion, is unjust. Critics consider the procedure to be infanticide,[16] a position which many in the pro-life movement extend to cover all abortions.[17] Some advocates, both for and against abortion rights, see the IDX issue as a central battleground in the wider abortion debate, representing an attempt to set a legal precedent so as to gradually erode access to all abortion methods.[18]
Dr. Martin Haskell has called the IDX procedure "a quick, surgical outpatient method" for late second-trimester and early third-trimester abortions.[19] The Partial-Birth Abortion Ban Act of 2003 describes it as "a gruesome and inhumane procedure that is never medically necessary."[20]
According to a BBC report about the U.S. Supreme Court's decision in Gonzales v. Carhart, "government lawyers and others who favour the ban, have said there are alternative and more widely used procedures that are still legal - which involves dismembering the fetus in the uterus."[21] An article in Harper's magazine stated that, "Defending the Partial-Birth Abortion Ban... requires arguing to judges that pulling a fetus from a woman's body in dismembered pieces is legal, medically acceptable, and safe; but that pulling a fetus out intact, so that if the woman wishes the fetus can be wrapped in a blanket and handed to her, is appropriately punishable by a fine, or up to two years' imprisonment, or both."[11] The U.S. Supreme Court has stated that intact D&X remains legal as long as there is first an "injection that kills the fetus."[1]
There is also controversy about why this procedure is used. Although prominent defenders of the method asserted during 1995 and 1996 that it was used only or mostly in acute medical circumstances, lobbyist Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers (a trade association of abortion providers), told the New York Times (February 26, 1997): "In the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along."[22] Some prominent pro-choice advocates quickly defended the accuracy of Fitzsimmons's statements,[23] whilst others condemned Fitzsimmons as self-serving.[24]
In support of the Partial-Birth Abortion Ban Act, a nurse who witnessed three IDX procedures found them deeply disturbing, and described one performed on a 26½-week fetus with Down Syndrome in testimony before a Judiciary subcommittee of the US House of Representatives, where she stated "[t]he baby’s little fingers were clasping and unclasping, and his little feet were kicking," right before the procedure.[25]
A journalist observed three IDX and two D&E procedures involving fetuses ranging from 19 to 23 weeks. She "watched for any signs of fetal distress, but ... [she] could see no response, no reflexive spasm, nothing. Whether this was a result of the anesthesia or an undeveloped fetal system for pain sensitivity, one thing was clear: There was no discernible response by the fetus."[26]
Abortion provider Warren Hern asserted in 2003 that "No peer-reviewed articles or case reports have ever been published describing anything such as 'partial-birth' abortion, 'Intact D&E' (for 'dilation and extraction'), or any of its synonyms."[27] Therefore, Hern expressed uncertainty about what all of these terms mean. The U.S. Supreme Court held in Gonzales v. Carhart that these terms of the federal statute are not vague because the statute specifically detailed the procedure being banned: it specified anatomical landmarks past which the fetus must not be delivered, and criminalized such a procedure only if an "overt" fatal act is performed on the fetus after "partial delivery."[4]
Since 1995, led by Republicans in Congress, the U.S. House of Representatives and U.S. Senate have moved several times to pass measures banning the procedure. Congress passed two such measures by wide margins during Bill Clinton's presidency, but Clinton vetoed those bills in April 1996 and October 1997 on the grounds that they did not include health exceptions. Subsequent congressional attempts at overriding the veto were unsuccessful. Doctors "have been successfully sued for failure to refer patients for late-term abortions in cases of fetal abnormalities."[28]
A major part of the legal battle over banning the procedure relates to health exceptions, which would permit the procedure in special circumstances. The 1973 Supreme Court decision Roe v. Wade, which declared many state-level abortion restrictions unconstitutional, allowed states to ban abortions of post-viable fetuses unless an abortion was "necessary to preserve the life or health of the mother." The companion ruling, Doe v. Bolton, upheld against a vagueness challenge a state law that defined health to include mental as well as physical health. The Court has never explicitly held, as a matter of constitutional law, that states have to allow abortions of post-viable fetuses if doing so is necessary for the woman's mental health, but many read Doe as implying as much. The concern that the health exception can be read so liberally partly explains why supporters of the Partial-Birth Abortion Ban Act did not want to include one.
The Act includes an exception for the life of the woman, but explicitly not for non-life-threatening health issues; opponents believe that this exception is too narrow and have mounted numerous legal challenges. Congress asserted that the procedure is never necessary for maternal health.
In 2003, the Partial-Birth Abortion Ban Act (H.R. 760, S. 3) was signed into law; the House passed it on October 2 with a vote of 281-142, the Senate passed it on October 21 with a vote of 64-34, and President George W. Bush signed it into law on November 5.
Beginning in early 2004, the Planned Parenthood Federation of America, the National Abortion Federation, and abortion doctors in Nebraska challenged the ban in federal district courts in the Northern District of California, Southern District of New York, and District of Nebraska. All three district courts ruled the ban unconstitutional that same year. Their respective federal courts of appeals—the Ninth Circuit, Second Circuit, and Eighth Circuit, respectively—affirmed these rulings on appeal.
The three cases were all appealed to the U.S. Supreme Court, and were consolidated into the case Gonzales v. Carhart. On April 18, 2007, the Supreme Court voted to uphold the Partial-Birth Abortion Ban Act by a decision of 5-4.[29] Justice Kennedy wrote for the majority and was joined by Justices Thomas, Scalia, Alito, and Chief Justice Roberts. A dissenting opinion was written by Justice Ginsburg and joined by Justices Stevens, Souter and Breyer.
Many states have bans on late-term abortions which apply to the IDX procedure if it is performed after viability.
Many states have also passed bans specifically on the IDX procedure. The first was Ohio, which in 1995 enacted a law that referred to the procedure as dilation and extraction. In 1997, the United States Court of Appeals for the Sixth Circuit found the law unconstitutional on the grounds that it placed a substantial and unconstitutional obstacle in the path of women seeking pre-viability abortions in the second trimester.
Between 1995 and 2000, 28 more states passed Partial-Birth Abortion bans, all similar to the proposed federal bans and all lacking an exemption for the health of the woman. Many of these state laws faced legal challenges, with Nebraska's the first to reach decision in Stenberg v. Carhart. The Federal District Court held Nebraska's statute unconstitutional on two counts. One being the bill's language was too broad, potentially rendering a range of abortion procedures illegal, and thus, creating an undue burden on a woman's ability to choose. The other count was the bill failed to provide a necessary exception for the health of the woman. The decision was appealed to and affirmed by both the Eighth Circuit and the Supreme Court on June 2000, thus resolving the legal challenges to similar state bans nationwide.
Since the Stenberg v. Carhart decision, Virginia, Michigan, and Utah have adopted legislation very similar to the Nebraska law overturned as unconstitutional. The Michigan law were similarly struck down --- for broadness and failure to provide a health exemption. Utah's law remains on the books, pending trial, but is unenforceable under a court-ordered preliminary injunction. Virginia's Law was initially ruled invalid, but was reversed and remanded to the District Court in the wake of the Gonzales v. Carhart decision, where it was upheld as constitutional. This is despite the fact the Virginia law criminalizes abortions for accidental D & X procedures, as well as intentional D & X.
In 2000 Ohio introduced another "partial-birth abortion" ban. The law differed from previous attempts at the ban in that it specifically excluded D&E procedures, while also providing a narrow health exception. This law was upheld on appeal to the Sixth Circuit in 2003 on the grounds that "it permitted the partial birth procedure when necessary to prevent significant health risks."
In 2003 the Michigan Senate introduced Senate Bill No. 395. The bill, which would change the legal definition of birth, would in effect ban partial birth abortions. The definition of birth as defined in the bill was that once any part of the body had passed beyond the vaginal plane of introitus it is considered a birth. The bill included an exemption for the mother's health. The bill was passed by both the Senate and House of Representatives but was vetoed by governor Jennifer Granholm.
Questioned about United Kingdom government policy on the issue in Parliament, Baroness Andrews stated that "We are not aware of the procedure referred to as 'partial-birth abortion' being used in Great Britain. It is the Royal College of Obstetricians and Gynaecologists' (RCOG) belief that this method of abortion is never used as a primary or pro-active technique and is only ever likely to be performed in unforeseen circumstances in order to reduce maternal mortality or severe morbidity."[30]