High Court to Hear Arguments in Abortion Case

At the midterm of a pregnancy, the fetus begins to look like a baby in miniature. It is too tiny and undeveloped to live on its own but looms large in this year’s fiercest fight over abortion.

On Tuesday, the Supreme Court will take up the case of Dr. LeRoy Carhart to consider not whether abortions can be performed at this stage but how they are to be done.

A former Air Force surgeon, Carhart is the only physician in Nebraska who routinely performs second-trimester abortions. His shuttered clinic on a side street in this Omaha suburb draws women from hundreds of miles away and from four surrounding states. Most are college students and young workers who are in the first weeks of pregnancy.

But each week, a few arrive who are much further along. They tend to be poor and uneducated and, in some instances, have gone months before they realized they were pregnant.

Between the fourth and fifth month, the fetus is about 6 inches long and weighs nearly half a pound. Because its bones have begun to harden, an abortion is more complicated.

Doctors commonly use two methods for abortions at this stage. In the first, known as a D&E;, for dilation and evacuation, the fetus is removed in parts. Some refer to this as a dismemberment abortion.

Nebraska Ban at Center of Arguments

The other procedure seeks to remove the fetus whole. It is known as a D&X;, for dilation and extraction. Doctors call this an intact removal. Opponents call it a “partial-birth abortion.”

For the last five years, that chilling term has reverberated through state legislatures and the U.S. Congress. It has become a rallying cry of the anti-abortion movement and will be heard often during this election year.

The Nebraska Legislature in 1997 passed a law making the performance of “partial-birth abortions” a crime punishable by 20 years in prison. Carhart challenged the law and the U.S. 8th Circuit Court of Appeals overturned it last year. (Most of the other state laws have been struck down as well.)

Now the Nebraska case is before the Supreme Court, which is considering an abortion restriction for the first time since 1992.

Anti-abortion politicians condemn the intact abortions because, they say, most of a live fetus is delivered before it is killed. While a dismemberment in the uterus is entirely legal, “infanticide” outside the woman’s body is surely not, they say.

But from a doctor’s viewpoint, the legal distinction between the two abortion procedures makes little sense.

While the dismemberment procedure may be legal, it is riskier for his patients, Carhart said. The broken, bony fragments of the fetus can cause internal bleeding in the patient, as can the probing of the forceps. Removing the fetus whole also ensures all the potentially infectious tissue is taken out, he said.

“If it is safer for just one patient, I don’t think I should be forced to sacrifice her safety” to the state law, said Carhart, 58.

As a young emergency room doctor, he saw women dying of infection from botched abortions, and Carhart speaks of the 1973 Roe vs. Wade ruling as a great advance for women’s health.

Lawmakers should not “force women to undergo riskier medical procedures just so they can make a political point,” he said.

In the political arena, however, the abortion rights movement has struggled to counter the rhetoric against “partial-birth abortions.” Its leaders accuse their opponents of waging a propaganda campaign with misleading illustrations and graphic language.

About 90% of abortions are performed during the first three months of pregnancy, they note. At that stage, a doctor uses a narrow suction tube--not much thicker than a straw--to vacuum out the soft, unformed tissue.

Abortion rights advocates also say that the intact removal procedure is used each year on a handful of expectant mothers who discover in the seventh or eighth month of pregnancy that their fetus is horribly deformed. By removing the fetus intact, physicians can examine it and seek to learn the cause of deformity.

But late abortions for medical complications or fetal abnormalities remain the exception.

In truth, the dispute over “partial-birth abortion” centers on routine second-trimester abortions. More than 130,000 are performed annually in the United States. Second-trimester abortions are legal nationwide, but 31 states have passed laws forbidding “partial- birth abortions.” And understanding this clash between medicine and politics demands a close-up look at what a National Right to Life Committee strategist calls “the grisly mechanics” of later abortions.

After the 15th week of pregnancy, removing the fetal skull becomes far more difficult for the doctor. It is by far the largest bony part, and it cannot be squeezed through the dilated cervix at that stage without inducing labor.

In the standard dismemberment procedure, the doctor typically cuts the umbilical cord and then reaches into the uterus with forceps. He punctures the skull and drains its contents before removing it with the other pieces.

Lawyers for the Right to Life Committee stressed in their brief to the Supreme Court that the “partial-birth abortion” ban “does not apply to the conventional D&E; procedure, since [that] involves dismemberment before the fetus emerges.”

From the doctor’s viewpoint, the banned intact-removal procedure differs only slightly. After cutting the umbilical cord, Carhart uses forceps to grab the legs and pulls as much of the fetus as possible through the narrow cervical opening. Then he reaches into the uterus, punctures the skull and removes it too.

In either procedure, the exact moment of fetal death is not certain.

In some cases, the doctor injects the fetus with a heart-stopping drug hours before beginning the procedure. But these injections are risky. A needle aimed at the fetus could instead puncture the woman’s uterus or bowel.

Carhart said that he does not like to inject a fetus unless the pregnancy has reached the 20th week. Then, the larger size of the fetus makes an injection less risky for the patient. This means, however, that during an abortion in the 17th or 18th week, the fetus’ heart may still be beating when Carhart punctures the skull--in either procedure.

The bans on “partial-birth abortion” turn on this latter possibility.

Abortion foes claim that the fetus may be alive and alert during the procedure. Their lawyers say that the procedure is illegal because part of the fetus is outside the mother’s uterus.

“It is delivering an intact living child, where the legs and trunk are outside of the woman’s body, and then killing the child,” said James Bopp Jr. of Terre Haute, Ind., counsel for the National Right to Life Committee. “It’s the location of the killing that makes the difference.”

However, the American College of Obstetricians and Gynecologists called the intact removals “a minor, and often safer, variant of the traditional D&E.;” All abortions involve killing the fetus, they said, noting that severing the umbilical cord will bring about death.

For his part, Carhart said that he rarely performs the disputed procedure.

Of the 1,200 to 1,500 abortions he performs in a year, about 200 are done in the second trimester, he said. Ten to 20 of those would be illegal under his state’s intact removal ban, he testified at his 1997 trial.

“But I never know in advance which of them will be in those 10 to 20,” he said in an interview. Often, when he seeks to remove the fetus whole, it comes apart inside the uterus.

He is confident, however, that the intact removals are safer for his patients.

1992 Ruling Upheld Abortion Right

The crusade against “partial-birth abortion” began in the wake of a devastating setback for the anti-abortion movement. Presidents Reagan and Bush had pledged to reverse Roe vs. Wade by appointing anti-abortion justices to the Supreme Court.

By 1992, the chief justice and five associate justices were Reagan or Bush appointees. In addition, one Democratic appointee, Justice Byron R. White, had voiced his determination to overturn the abortion right.

But, in June of that year, the court, on a 5-4 vote, surprisingly affirmed that women have a right to choose abortion before the fetus is “viable,” or able to live on its own. This occurs about the 24th week of pregnancy.

Until then, the government may not put “an undue burden” on women seeking abortion, said Justice Sandra Day O’Connor, a Reagan appointee. She was joined by a second Reagan appointee, Justice Anthony M. Kennedy, and Justice David H. Souter, who was appointed by Bush.

That November, Bill Clinton was elected president, ensuring that no new anti-abortion justices would soon join the court. The abortion right appeared to be safe.

But early in 1993, the Right to Life Committee received an anonymous letter containing a paper presented at a Dallas conference of abortion doctors. There, Dr. Martin Haskell, an Ohio physician, described an alternative to the dismemberment method for second-trimester abortions.

The surgery was performed after two days of testing the patient and dilating her cervix, he said, but, as in all midterm abortions, the difficulty concerned removal of the skull. To shrink it, Haskell wrote, “the surgeon forces scissors into the base of the skull and introduces a suction catheter [to] evacuate the contents.”

Douglas Johnson, the National Right to Life Committee’s chief strategist, saw in those words the means to show the true horror of abortion. He had line drawings made that showed a fetus being pulled from its mother’s body. Then, the caption says, “the abortionist jams scissors into the baby’s skull.”

After taking control of Congress in 1995, Republican lawmakers conducted hearings in which the drawings took center stage. A nurse who had worked for Dr. Haskell added another detail. Brenda Pratt Shafer said that she had watched him perform an abortion at six months and saw the fetus’ feet kick and fingers clasp just before its skull was punctured.

This testimony has been strongly disputed. Doctors say that the combination of anesthesia and the severed umbilical cord leaves the fetus numbed and nearly dead.

But Dr. Haskell, unlike Carhart’s practice in abortions performed after the 20th week, does not inject the fetus with a heart-stopping drug before the abortion.

A nurse who has watched Carhart perform hundreds of abortions said that she had seen nothing like what nurse Shafer described.

The fetuses “come out gray. They don’t look alive or like they’re feeling any pain,” said the nurse, who asked that her name not be used.

But the drawings and Shafer’s testimony fueled a legislative drive. Since 1995, 31 states have passed laws against “partial-birth abortion.” Congress did so twice, but the measures were vetoed by President Clinton. Earlier this month, the House passed another bill banning the procedure.

Nebraska’s law, passed in 1997 with just one dissenting vote, makes it a crime to “partially deliver . . . a substantial portion . . . of a living unborn child before killing the unborn child.”

Despite their legislative success, the partial-birth bans have fared poorly in the courts.

Challengers have argued first that the laws appear to ban all midterm abortions. In both procedures, “a substantial portion” of the fetus, such as a leg, is removed before its heart quits beating.

Second, they said, the bans put an “undue burden” on women, forcing them to undergo riskier surgery.

When Carhart challenged Nebraska’s law, U.S. District Judge Richard G. Kopf, a Bush appointee, took testimony from medical experts. Ultimately, he agreed that intact removals were safer than the dismemberment procedure. In a 71-page opinion, he struck down the state’s law, saying it was vaguely written, appeared to cover all midterm abortions and prohibited the safest procedure.

“Carhart is forced to endanger his patients for no reason,” the judge said.

Don Stenberg, Nebraska’s attorney general, is running for the U.S. Senate and has campaigned as a leader in the fight against “partial-birth abortion.” But he lost last year when he took the issue to the U.S. Court of Appeals in St. Louis. The three-judge panel, which included two Reagan appointees, affirmed Kopf’s decision.

The case (Stenberg vs. Carhart, 99-830) comes before the high court Tuesday and most legal experts predict that the court will strike down Nebraska’s law on the basis of Justice O’Connor’s opinion eight years ago. She said then that states may not put an “undue burden” or place “a substantial obstacle” in the path of women seeking abortion. She did not define precisely what this means, but Carhart’s lawyers from the Center for Reproductive Law and Policy in New York argue that a ban on intact removals is such a burden because it forces patients to undergo riskier surgery.

Regardless of how the high court rules, the anti-abortion movement is confident that its crusade will prove a winner in the end.

“We can’t lose this case,” said Nebraska’s deputy attorney general, L. Steven Grasz. “If we win, it will set a barrier to infanticide. And if we lose, it will turn the public against abortion and help ensure [that] the next justices have a different view.”

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