Exactly what is banned by the U.S. “Partial-Birth Abortion Ban Act”?

In an opinion for Gonzales v. Carhart, issued on April 18, 2007, the U.S. Supreme Court upheld the Partial-Birth Abortion Ban Act of 2003, which prohibits physicians from performing a particular method of abortion sometimes used during the second and third trimesters.

The method, known medically as “intact dilation and extraction,” involves – at least, as it is described in the prohibition – partially delivering the living fetus from its mother’s body before killing it. According to the Alan Guttmacher Institute in a 2000 report, the procedure accounted for only 17 in every 10,000 abortions in the United States. (“Partial birth abortion” is a political term, not a medical term.)

Abortion providers claim the procedure is sometimes medically necessary for the sake of the woman’s health. The American College of Obstetricians and Gynecologists (ACOG), which has a membership of over 50,000 healthcare providers in the country, opposes the ban. However, such medical opinions failed to sway the Supreme Court in Gonzales vs. Carhart.

The legal ruling

In the seven-page syllabus of the opinion, the Court claimed there are “safe alternatives” to intact dilation and extraction, and that the abortion of an intact fetus would be permissible even under the Partial-Birth Abortion Ban Act provided that the fetus were killed by injection prior to being removed from its mother’s body. The Court ruled that anyone seeking an exception to the ban based on a health concern must clearly define the health concern and raise an “as-applied challenge.” What the Court called “medical uncertainty” and “marginal safety considerations, including the balance of risks” are insufficient reasons, it ruled, for it to refrain from regulating abortion altogether.

Thus, there is no built-in exception to the ban for the sake of a woman’s health, although there is an exception if her very life is at stake. “This is the first time” – as a May 24, 2007 article in the New England Journal of Medicine put it – “the Court has ever held that physicians can be prohibited from using a medical procedure deemed necessary by the physician to benefit the patient’s health.”

In the Gonzales v. Carhart opinion, the Court paraphrased the view of Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), as saying “that the government has a legitimate, substantial interest in preserving and promoting fetal life” and that it “may use its voice and its regulatory authority to show its profound respect for the life within the woman.” In essence, this means that pregnancy is not a private matter and can be regulated. This differs from the Court’s own opinion in Roe v. Wade, 410 U.S. 113 (1973), which found that a woman’s choice to have an abortion is protected by a constitutional right to privacy.

Noting that doctors may not wish to disclose their abortion methods to their patients because “some women come to regret” terminating their pregnancies, the Court argued that it is “precisely this lack of information that is of legitimate concern to the State.” When the society as a whole is educated about the “consequences” of choosing abortion (i.e., how the abortion is performed), “the State’s interest in respect for life is advanced.”

The Court compared intact dilation and extraction to infanticide:

“Congress determined that such abortions [involving partial delivery of a living fetus] are similar to the killing of a newborn infant. This Court has confirmed the validity of drawing boundaries to prevent practices that extinguish life and are close to actions that are condemned…”

It went on to praise the beauty and naturalness of pregnancy and maternal bonding with children, while implying that abortions are perverse:

“The Act also recognizes that respect for human life finds an ultimate expression in a mother’s love for her child… It was reasonable for Congress to think that partial-birth abortion…undermines the public’s perception of the doctor’s appropriate role during delivery, and perverts the birth process.”

The effects of the legislation

A Guttmacher Institute publication dated Dec. 1, 2013 indicated that 32 U.S. states have their own ban against so-called “partial birth” abortions. All of them include an exception for situations that threaten the life of the mother (as does the federal law), and three of them include an exception to protect the health of the mother (which the federal law does not).

Ten years after the Partial-Birth Abortion Ban Act was first passed, the results of this legislation are unclear. To avoid prosecution under federal and state bans, many late-term abortion providers kill the fetus by injection of poisonous salt before removing it from the woman’s uterus, simply to ensure that it is not delivered alive before it is killed. This is done for the physician’s own legal protection, not for any benefit to the woman receiving the abortion.

A widely cited figure in the “pro-life” movement that the Partial-Birth Abortion Ban Act saved the lives of thousands of babies was based simply on Guttmacher Institute data that there were 650 abortions performed by intact dilation and extraction in 1996 and 2,200 such procedures in 2000, as well as the assumption that these abortions no longer take place because of the ban. A Washington Post writer in 2007 clarified that “data on abortions – particularly the types of procedures physicians use – are among the more incomplete and contested health statistics in the United States.”