Abortion method returns to justices
When Douglas Johnson, the lobbyist for the National Right to Life Committee, first heard a description 14 years ago of a midterm abortion procedure, he felt a sense of revulsion and saw an opportunity.
He was convinced that if most Americans knew about it, they would think differently about abortion.
Johnson and a congressman coined a name for it: “partial-birth abortion.” The antiabortion group obtained and widely distributed a set of line drawings that illustrated the procedure. Johnson said he thought “the reaction of many Americans to seeing a drawing of this would be to say: ‘This can’t be legal.’ ”
Whether that procedure, known medically as dilation and extraction or D&X;, will be legal comes before the Supreme Court on Wednesday, the day after the midterm elections.
With two new Bush appointees on the court -- one replacing a justice who supported abortion rights -- Johnson and other abortion opponents are optimistic that, for the first time, the court will uphold an outright ban on an abortion method.
The campaign against the procedure has succeeded where other attacks on abortion failed.
By branding it gruesome and unnecessary, Johnson won broad support for a criminal ban, even from lawmakers who usually vote in support of abortion rights. And he tapped into the public’s public discomfort with abortions late in a pregnancy. A 2003 CNN/USA Today/Gallup Poll showed, by a ratio of more than 2 to 1, that Americans believe abortion should be illegal in the second trimester.
A win for Johnson and abortion foes would chip away at the court’s 1973 Roe vs. Wade decision, which held that women have a constitutional right to an abortion.
Those fighting a ban argue that the disputed procedure is sometimes the safest method for aborting a fetus in midterm and, despite the attention it receives, is not commonly used.
Johnson, 55, first heard about it in 1992, when someone mailed an Ohio doctor’s account to his organization. In the procedure, performed in the fifth or sixth month, the fetus is pulled partway out of the dilated cervix and the skull punctured to collapse it, allowing the fetus to be removed intact from the uterus.
Working out of a small, drab Washington office, Johnson tried to shift the focus of the abortion debate from the rights of pregnant women to the fetuses. He walked the halls of Congress with a briefcase that included a plastic model of a 20-week-old fetus that he used to make his case.
Relentless, Johnson was dubbed “the most effective lobbyist in Washington” by a conservative magazine.
Twice in the 1990s, Congress passed bills to outlaw the procedure, except to save a mother’s life, but President Clinton vetoed them. He said he would sign such legislation if lawmakers added an exception for when the procedure was needed to preserve the health of the woman.
Abortion foes refused. They distrusted health exceptions, believing they would render a ban meaningless. Roe vs. Wade had defined health to include emotional, psychological, familial and age factors.
Based on language drafted by Johnson’s office, 30 state legislatures had enacted bans by the late 1990s.
In 2003, President Bush signed the Partial-Birth Abortion Ban Act without an exception for health concerns.
It’s not clear that the ban would affect many abortions. Only 1% to 2% of abortions take place after the 20th week of pregnancy.
Of these, about 3,000 to 5,000 per year are done with D&X.; Doctors say only a small percentage of those are done because of medical complications or fetal deformity.
Johnson’s attack on the procedure put the abortion-rights movement on the defensive. Its leaders argue that abortion has been and should remain a private matter between a woman and her doctor.
They also say there is something profoundly illogical about a ban on one method: If abortions are legal at the 20th week of pregnancy, why forbid doctors to use a method that might be the safest?
“ ‘Partial-birth abortion’ is a political term. It’s about generating public outrage. It’s not a medical term,” said Dr. Deborah Oyer, a Seattle physician who does midterm abortions but not the D&X; procedure. She said she resents legislators trying to regulate the practice of medicine.
“Doctors want to do what is best for the patient. This is all about keeping the abortion issue before the public,” she said.
Six years ago, the Supreme Court struck down Nebraska’s ban on the procedure. The 5-4 majority, which included now-retired Justice Sandra Day O’Connor, said the ban violated a woman’s right to abortion because it did not include a health exception.
Dr. Leroy Carhart, an abortion doctor from Bellevue, Neb., had challenged the state law as unconstitutional. During a two-week trial, Carhart and several medical experts testified that the D&X; procedure was sometimes safer because there was less risk of bleeding and infection.
“Where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health,” the government cannot ban it by law, the court ruled in Stenberg vs. Carhart in 2000.
When Congress took up the issue, many of its members were in a defiant mood. They declared the method, which they described as “gruesome and inhumane,” was “never medically indicated to preserve the health of the mother.”
Carhart sued to challenge the law, and lower courts blocked it from taking effect. On Wednesday, the high court will debate the case, Gonzales vs. Carhart.
The replacement of O’Connor with Justice Samuel A. Alito Jr., a conservative and a Catholic, has convinced many legal experts that the court is prepared to uphold stricter regulation of abortion. In Gonzales vs. Carhart, the court must first confront the precedent it established in the Nebraska case. The justices must also decide whether to defer to Congress on its ban of the procedure, as requested by U.S. Solicitor General Paul D. Clement, or to side with medical experts who testified.
After the bill became law, federal judges in San Francisco, New York and Omaha conducted trials on lawsuits that sought to overturn it. They heard from doctors who teach in medical schools at Cornell, Yale, Columbia, Northwestern, the University of Pittsburgh and UC San Francisco.
By the middle months of a pregnancy, doctors remove the fetus with surgical instruments, using the D&X; method or the more common “dilation and evacuation,” called a D&E.; In that procedure, the doctor breaks apart the fetus before removing it from the uterus.
Experts told the three judges that the D&X; procedure was not the only safe way to perform abortions after 20 weeks, but was safer than D&E; in some cases, especially for women who have a damaged immune system or are in danger of hemorrhaging.
“Congress can ‘find’ that the moon is made of green cheese. That doesn’t make it so,” Dr. Nancy Stanwood, who teaches obstetrics at the University of Rochester, said in a recent interview. “When you’re doing surgery, shorter and faster is better. If an intact extraction is possible, it’s preferable.”
In Carhart’s case, U.S. District Judge Richard Kopf issued a 474-page opinion that extensively cited medical testimony to explain why the ban was unconstitutional.
Dr. Jill Vibhakar, who teaches obstetrics at the University of Iowa and performs abortions at an independent clinic in Iowa City, is a plaintiff with Carhart in the suit before the court. She said the justices face the same issue Wednesday that they did when they threw out the Nebraska ban.
“Nothing has changed recently in medical practice. The only thing that has changed is that a moderate female justice has been replaced by a conservative male justice,” Vibhakar said.
For his part, Johnson is cautious, but hopeful.
“I have given up making predictions about what the Supreme Court will do,” he said. “This law is really quite limited, but we hope it is a turning point and the beginning of a return to sanity.”