Transcript Document

The Abortion Wars and
Gonzales v. Carhart (2007):
How Doctors Affect the Law
Bruce Patsner, M.D., J.D.
Research Professor
Health Law and Policy Institute
University of Houston Law Center
Houston, Texas
The Critical Role of Physicians in
the Partial Birth Abortion Issue
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Physician expert medical testimony played
a critical role in the way Congress drafted
the federal Partial Birth Abortion Act of
2003
Physician expert medical testimony played
a critical role in fashioning both the
Majority and Dissenting U.S. Supreme
Court opinions in the Gonzales v. Carhart
decision
550 U.S. ___ (2007)
What Are We Talking About?
“Partial-birth” abortion
 Intact D & E (dilatation and evacuation) –
the term the U.S. Supreme Court used
 D & X (dilatation and extraction)
These terms all used to describe the same
surgical procedure.
No consensus in medical community over
the preferred term.
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The Numbers in U.S.
More than 1.2 million abortions per year
 <9 weeks
59%
 9-12 weeks 30%
 13-15 weeks 6%
 16-20 weeks 4%
 21+ weeks
1%
Source: Guttmacher Institute, 2006
CDC does not break data down after 20 weeks
D & X usually used after 20 weeks, but not always
Fetal viability high after 27 weeks, nil before 22
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Constitutional Right to Abortion
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Roe v Wade 410 U.S. 113 (1973)
Planned Parenthood of Southeastern
Pennsylvania v Casey 505 U.S. 883 (1992)
Women in the U.S. have a substantive due
process right to have access to abortion in the
first and second trimester before fetal viability
There was A LOT of precedent for Supreme
Court to deal with in Carhart 2007
Roe v. Wade: Holdings
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Recognized “the right of the woman to choose to have
an abortion before viability and to obtain it without
undue interference from the state.”
Acknowledged “State’s power to restrict abortions after
fetal viability.”
Confirmed that “the State has legitimate interests from
the outset of the pregnancy in protecting the health of
the woman..” which increases per trimester
“Texas law making it a crime to assist a woman to get an
abortion violated her due process rights.”
Decision expressed clear intent not to interfere with day
to day practice of medicine
Planned Parenthood v. Casey:
Holdings (1992)
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A Pennsylvania law that required spousal
notification prior to obtaining an abortion was
invalid under the 14th Amendment because it
created an undue burden on married women
seeking an abortion.
But, requirements for parental consent, informed
consent, and 24-hour waiting period were
constitutionally valid regulations.
So, it’s not an absolute, unfettered right.
Stenberg v. Carhart (2000):
Holdings
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U.S. Supreme Court rules Nebraska state law
abolishing partial birth abortion is invalid on
two grounds:
Wording of statute is so vague that it could be
easily applied to more traditional D&E, even in
first trimester, and could eliminate access to all
of them
Lack of an exception allowing the procedure
where necessary for the health of the mother
is a due process violation of a woman’s
substantive right to abortion
Partial-Birth Abortion Act of 2003
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Federal law passed by Congress and signed by President
Bush in 2003
The third try at this law since 1995; twice vetoed by
President Clinton 1996, 1997
Contained a careful description of the procedure
NO exceptions for maternal health
The Bill’s facts about the procedure were all based on
expert medical testimony before Congress
Responded to the Stenberg decision in two ways: more
precise language, and Congress stated it was not bound
to accept as fact some of the findings of the district
court judge
Some of the recitations of “fact” in the bill are FALSE
Procedural History of Carhart
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Nebraska passes state law outlawing partial birth abortion 1997. No
exceptions.
Stenberg v Carhart 53 U.S. 914 (2000) kills this.
U.S. Partial-Birth Abortion Ban Act of 2003 passed in response.
“Abortion docs” file against U.S. A.G. in District Court of Nebraska,
ask for and are granted permanent injunction against enforcement.
Nebraska law declared unconstitutional. Appeal to 8th Circuit.
Carhart v Gonzales 8th Circuit 2005, and Planned Parenthood
Federation of America v. Gonzales 9th Circuit 2006 affirm. Hold that
the Nebraska law was facially unconstitutional because Stenberg
case created a per se constitutional rule that all abortion bans need
to have an exception for the health of a woman.
Gonzales v. Carhart 550 U.S.___2007 now upholds federal ban. NO
new medical evidence reviewed by Court.
8th Circuit Court Decision
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“when lack of a consensus exists in the medical
community, the Constitution requires legislatures
to err on the side of protecting women’s health
by including a health exception.”
The 8th Circuit Court rejected the Attorney
General’s attempt to demonstrate changed
evidentiary circumstances since Stenberg.
This “change” was the testimony before
Congress by medical experts opposed to D&X.
The Precise Legal Question Before
the Supreme Court in Carhart
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“Whether, notwithstanding Congress’s
determination that a health exception is
unnecessary to preserve the health of the
mother, the Partial-Birth Abortion Act is
invalid because it lacks a health exception
or is otherwise unconstitutional.”
Yes, they really write and talk like this…
The Decision (“Holding”)
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“Respondents have not demonstrated that
the Act, as a facial matter, is void for
vagueness, or that it imposes an undue
burden on a woman’s right to abortion
based on its overbreadth or lack of a
health exception. The decisions of the
Courts of Appeals for the Eighth and Ninth
Circuits are reversed.”
Justice Kennedy’s 5-4 Opinion
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The 2003 federal Act constitutional even with no health exception
– Why?
It’s “never really necessary” to do a D & X
Alternatives do exist
Thus, no loss of access to procedure and no infringement of due
process right
Our decision is “consistent with precedent”
Stated opinion is not just based on the Congressional testimony
since even he admits some of it was erroneous
Still, does not respect the medical evidentiary findings of any of
the three lower court decisions
Obsession with “moral” dimensions of the procedure and how it
reflects on the medical profession
The decision unfortunately reads like a document the Catholic
Church might have drafted
How is Carhart Not Consistent with
Roe v. Wade?
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Before viability the woman has an
unrestricted right to abortion
Partial-birth abortion procedures clearly
are performed before viability
J. Kennedy’s opinion simply ignores this
The procedure is banned even if the fetus
has NO chance at viability
How is Carhart Not Consistent with
Planned Parenthood v Casey?
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The Casey court stated with unmistakable
clarity that state regulation of access to
abortion procedures must protect the
health of the woman
There does not have to be unanimity in
the medical profession for this to apply
This precedent was ignored by Court in
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Paid lip service to “undue burden” test
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Carhart
How is Carhart Not Consistent with
Stenberg v. Carhart?
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Court held the Nebraska statute unconstitutional
in part because it lacked the requisite protection
for the preservation of a women’s health
Here we have a federal statute, also with no
health exception
Court made it clear that as long as “substantial
medical authority supports the proposition that
banning a particular abortion procedure could
endanger a woman’s health, a health exception
is required”
We should all be able to recognize a 180 degree
turn…this medical authority existed
Planned Parenthood of Central Mo.
v. Danforth 428 U.S. 52 (1976)
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Another S. Ct. precedent ignored, from this case
between Roe and Casey
Holding: a State must avoid subjecting women
to health risks not only where the pregnancy
itself creates danger, but also where state
regulation forces women to resort to less safe
methods of abortion
(later in Carhart, J. Ginsburg states “The very
purpose of a health exception is to protect
women in exceptional cases.”)
J.Ginsburg’s Dissent in Carhart
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Decision is “alarming” because…
Refuses to take Casey, Stenberg seriously
Tolerates/applauds federal intervention to ban
nationwide a procedure found necessary and
proper in certain cases by ACOG
Blurs line between previability and postviability
fetuses firmly drawn in Casey
For first time since Roe, Court blesses a
prohibition with no exception safeguarding a
woman’s health
Justice Ginsburg’s Dissent - II
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Accepted the medical testimony that there were
circumstances where the health of the mother would be
best served by D&X
Therefore, abolition of procedure is a due process
violation even if alternative procedures exist
Ridiculed Kennedy’s moral musings and reasoning
“The notion that either of these two equally gruesome
procedures..is more akin to infanticide than the other, or
that the state has any legitimate interest by banning one
but not the other, is simply irrational.”
“One wonders how long a line that saves no fetus from
destruction will hold in face of the Court’s ‘moral
concerns’ “ We’ll come back to this…
Policy Implications of Decision
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Direct regulation of medical profession by
Congress instead of individual states
First ban on a specific surgical procedure
First significant shift in “balance” of court
on abortion
More than just chipping around the edges
of Roe v. Wade
Incentivizes opponents of abortion
Significance for Physicians
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It is illegal to do an intact D&E procedure
No exception, even to save mother’s life,
or for cases of rape or incest
Federal penalities: fine and possible
imprisonment up to 2 years
Individual states may also additionally
criminalize performing this procedure
All doctors and patients must now be
aware of alternative procedures
During Hearings on the Partial Birth
Ban Act, Congress Found That..
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“ a moral, medical, and ethical consensus
exists that the practice of performing a
partial-birth abortion…is a gruesome and
inhumane procedure that is never
medically necessary and should be
prohibited.”
Congress could only find this to be true if
it accepted some medical expert testimony
and chose to ignore or discount others
Medical Experts and Congress
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Each side “cherry-picked” their experts
Did the testimony even matter, given the
politics of the issue?
No better, and perhaps worse, than
dealing with a judge and jury in a
malpractice trial. We’ve all been there.
Putting everything aside, the federal law
and the court decisions were ALL based on
this!
The Experts Against D & X
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None of the 6 physicians who testified before
Congress had ever performed an intact D & E.
Several did not provide abortion services at all.
One was not even an Ob-Gyn.
What does this say about us as physicians?
J.Breyer in Stenberg: “The oral testimony before
Congress was not only unbalanced, but
intentionally polemic.”
The Experts In Favor of D & X
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Had more experience with procedure
Had more academic credibility
Offered A LOT more “expert opinion” and
clinical judgment
Did they offer any more/real data?
What happened to “evidence-based”
medicine?
Medical Experts’ Claimed Safety
Advantages of D&X over D&E
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Are “marked (J. Ginsburg) for women with certain medical
conditions e.g. uterine scarring, bleeding disorders, heart disease or
compromised immune systems”
Safer if placenta previa and accreta
Safer for certain fetal hydrocephalus
Fewer passes, thus lower risk of uterine perforation and cervical
trauma
Lower chance of retained fetal parts
Lower chance of “exposing patient’s tissues” to sharp bony
fragments
Takes less time than D&E by dismemberment, thus “reduce may
reduce bleeding, the risk of infection, and complications relating to
anesthesia”
Proof that any or all of these statements are true?
Conflicting Medical Testimony
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The Partial Birth Abortion Act of 2003 contains
language that incorporates declarative medical
statements made by some of the experts who
testified against the procedure
How does the medical profession regulate itself?
We’ve seen politization of straightforward
medical decisions repetitively at FDA in the past
6 years e.g Plan B contraception
The Comparative Data
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Author Year Study Type
Conclusion
The Medical Data
Q1: Was there any new data presented to
the Court between the 2000 and 2007
Carhart decisions? NO
 There was new testimony before
Congress, but no new data was
presented. So..
(1) IS there any new medical data?
(2) What does the old data show?
We now need to talk about the surgery
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Intact D & E/ D & X
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Careful sizing and ultrasound
Review of indication(s) for procedure
3-day phased cervical dilatation/laminaria
Out-patient with general anesthesia
Suction of uterus to decompress amniotic fluid,
footling breech delivery
Puncture/evacuation of calvarium w/death of
fetus.
Supreme Court considered the delivery and
dealing with calvarium two separate “acts”
Intact D&E v Traditional D&E
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Mechanical difference in dealing with head and
body parts
Fetus killed by dismemberment and separation
of placenta once suction begins w/traditional
D&E; fetus killed by emptying of calvarium after
extraction of body. Placenta removal varies.
Which has purported higher risk for damage to
cervix, fetal pain, and other complications?
Clearly fewer passes with D&X – clearly true.
Dealing with the Fetal Skull
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Past 22 weeks largest fetal part in cm
1992 – Dr. Haskell’s notorious description of
entering skull using “blunt” Metzenbaum scissors
Descriptions aside, in both procedures the fetal
skull must be entered, emptied, collapsed, and
extracted
The only difference is the proximity of the skull
to the cervix at the start, sometimes
There is a difference in first dealing with fetal
corpus – in one it’s delivered, in the other
fragmented
A Critical Question
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Are there any circumstances in which D & X is
absolutely indicated, i.e. is more safe than any
other procedure?
This was one of the critical questions which the
U.S. Supreme Court decision in Carhart revolved
around
Congressional testimony by both sides
The medical literature – There are NO controlled
studies, and now never will be
This brings us to…
The Real Problem with D & X for
Justice Kennedy and Co..
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More closely resembles a delivery before the
fetus is killed, so it’s more like “infanticide”
Cheapens the medical profession
So, delivery is bad but dismemberment is OK
(for now)*
“Moral concerns” are at work that could yield
prohibitions on any abortion”
These concerns override all previous Supreme
Court precedent
*Or, Invaders from Mars is worse than Starship
Troopers
The Logic of J. Ginsburg’s Dissent
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All other destructive surgical procedures
for second trimester abortion are now in
danger of being banned
These cases will inevitably be brought
Just a couple of cm between delivery and
dismemberment
It’s then just a matter of time before the
logic is extended to first trimester
?Leave only medical abortion
Some Conclusions
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Supreme Court intervened in day to day medical practice
to ban a specific procedure despite clear precedent and
superior medical testimony.
Congress intervened in day to day medical practice. The
medical testimony presented was a charade, though a
serious one.
J. Kennedy’s decision is patronizing to women, highly
“selective” in which expert medical testimony to
embrace, and illogical.
The logic of J. Ginsburg’s dissent should have us worried
about what the Court could do next.
The next Supreme Court nominee is going to face a
firestorm of questions from Democrats
So Where Does This Leave Us and
Where Are We Headed?
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Unlikely to be any more federal legislation
because Congress no longer Republican
More individual state “anti-choice” laws
will be passed and will be challenged
Some will make it to the Supreme Court
The test is still: “Do the laws unduly
burden the woman’s right to abortion?”
How will the Court now rule, now that
Alito has replaced O’Connor?
The Harshest View of Carhart
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For the first time the Supreme Court has given more
value to potential fetal life than to the pregnant woman’s
life and health
Threats to federal protection of reproductive rights are
now real
Fetal personhood initiatives now on the ballot. Colorado
ballot initiative would grant legal personhood to fertilized
eggs, and extend the state’s constitutional protections to
“any human being from the moment of fertilization”
Colorado Supreme Court has approved that wording and
it will appear on the ballot if it garners just 76,000
signatures
2008:State Law Restrictions on
Abortion
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“anti-choice” laws are on the books in dozens of states;
lots in the pipeline.
Provide adminstrative, medical, financial, and consent
hurdles for women seeking abortion – eg. No funding,
more consent, forced ultrasound with viewing, biased
“counseling” about adoption
This is the 1st trend
The 2nd trend is simply banning more abortion
procedures outright, even though illegal except for a ban
on partial-birth abortion. There is now nothing to lose,
and Supreme Court precedent
3rd trend is “springing” state abortion law if Roe v. Wade
ever overturned
Meta-Issues for Physicians
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Conflicting Medical Testimony: before
Congress, in Courts (med-mal)
Physician-Conscience conflicts: refusal to
prescribe or provide services. Legal
implications?
Micro-management of Medical Practice by
the U.S. Congress 2000-2006: from pain
management to Teri Schiavo to abortion..
“Religion, Conscience, and
Controversial Clinical Practices”
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Curlin, Lawrence, Chin & Lantos NEJM 356: 6,
February 8, 2007
“Many physicians do not consider themselves
obligated to disclose information about or refer
patients for legal but morally controversial
medical procedures.”
Patients who want information and access may
need to ask ahead of time.
What about our fiduciary responsibility to
patients?