D&E Abortions and Partial Truth

by Polly Rothstein

Abortion rights have been clobbered by a ruse of the National Conference of Catholic Bishops and the Christian Coalition. Departing from their usual attacks on legal abortion and support for restrictions on access, they have attacked a method of abortion, dilation and evacuation. D&E is used in almost all abortions after 12 weeks. The public has been led to believe that the bills in Congress and many state legislatures would ban only the variation called “intact D&E” late in pregnancy, and that other procedures would do just as well. But this bill would ban all D&Es, virtually all of which are perfectly legal abortions in the second trimester abortions.

The bill in Congress is labeled the “Partial-Birth Abortion Act.” “Partial-birth abortion” is a phony term not known in medicine. To protect women, President Clinton vetoed the bill in 1996, and will do so again if both houses pass it. Many states, including New York, have proposed or passed similar bills.

The anti-choice side has made abortion procedures and fetuses the issue, using the most shocking language and ignoring women’s lives and health. While the legislation is deliberately vague, proponents’ rhetoric is clear and wildly inaccurate. The surreal name “partial birth abortions” is a propaganda coup. The pro-choice side, unable to refute such demagoguery in a sound bite, is on the defensive. The public is confused and doesn’t realize that this is a battle in the war against legal abortion.

Most anti-choice legislation has sought to restrict access to abortion. This bill is the first strike at a legal abortion method, and therefore aimed directly at Roe v. Wade. Court challenges could go to the Supreme Court and result in a reversal of Roe, opening the door to a ban on abortions in the states.

In Roe v. Wade, the Supreme Court ruled that abortions in the second trimester may be regulated only to protect the woman’s health. In the third trimester, after viability, states may ban abortions, except where the life or health of the woman is at stake. Third trimester abortions are illegal in NY and most other states. The national standard for viability is 24 weeks. Abortion foes have engineered uncertainty by lumping together second and third trimester abortions, convincing people that healthy women seek and receive “partial-birth abortions” in the final weeks of pregnancy for minor reasons.

Friendly fire has damaged pro-choice credibility. Inexplicably, lobbyist Ron Fitzsimmons “confessed” that most D&Es are done on healthy women and healthy fetuses, as if he were revealing a dirty little secret. He did not make it clear that these were perfectly legal second-trimester abortions. Using Fitzsimmons as a wedge, the House voted in March 1997 to ban “partial birth abortions” by an even larger veto-proof majority than 1996. Westchester Congresswoman Sue Kelly switched her vote to favor the ban, explaining in a letter that she “doesn’t believe that “partial birth abortions” should be an option for healthy mothers carrying healthy fetuses during the late stages of pregnancy.”

Here are some clarifying facts:

  1. This bill would criminalize any procedure where living fetal tissue passes through the the birth canal (cervix), with a very narrow exception to save the woman’s life. The terms are not defined. The sweeping language would apply to all D&Es, requiring doctors to use a procedure that might be less safe for the patient and more likely to compromise her future fertility.
  2. Doctors choose an abortion method for medical reasons based on the individual woman’s body, her health, previous pregnancies, the duration of the pregnancy, and the position and condition of the fetus. Doctors must be free to determine the best method for each patient and change course if complications arise.
  3. In abortions due to fetal defects, it is often necessary to extract the fetus intact in order to study the anomaly and predict the risk of recurrences. That would be a crime, according to this law.
  4. To avoid malpractice suits as well as a federal criminal indictment and possible civil charges, many doctors would simply stop doing second trimester abortions. This “chilling effect” is, of course, a goal of the bills’ sponsors.
  5. The number of abortions by any method are not the issue, but statistics put it in perspective. The federal Centers for Disease Control (CDC) report:
    Post 24-week procedures are done only for compelling medical reasons related to the woman or the fetus. Few of these fetuses could live and some are stillbirths, not abortions.

    90% of abortions are done in the first trimester
    Nearly 10% occur second trimester (from 12-24 weeks)
    5.3% after 16 weeks
    1.3% after 20 weeks
    NYS Health Department figures from 1993 (the most recent) show only .02% of abortions after 24 weeks.
  6. Doctors routinely provide intensive care to ensure the survival of viable fetuses. NYS requires a second doctor to be present in case of a live birth.

The opposition won’t stop using the term “partial birth abortion,” the deceptive rhetoric, or the cartoon drawings of full-term fetuses, but we can insist that the press use the correct medical term, “dilation and evacuation” or “D&E.”

Laws controlling medical practice should never be driven by religious beliefs or a political agenda. Bans on abortion procedures interfere in the doctor-patient relationship and put legislators in the position of making medical decisions they are not competent to make. There is no place for a one-size-fits-all law in medicine and it should never be a crime for a doctor to do the safest procedure for a patient. It is crucial to make it understood that this bill would increase the risk to women and violate Roe v. Wade.

All pro-choice people wish that unwanted pregnancies and medical complications did not occur, and that all abortions took place in the first trimester – but that’s not reality. Some women learn about fetal defects from tests that can’t be performed until the second trimester. And ironically, anti-abortion laws such as denial of Medicaid funding, parental involvement requirements, and waiting periods cause delay in many cases. Even in NY, where we have defeated such restrictions, women may be delayed by scarcity of services nearby and personal circumstances such as late diagnosis of pregnancy, inflexible work schedule, and lack of money, child care, or transportation.

Politicians wrongly believe that the public favors banning intact D&E abortions. Family Planning Advocates of NYS commissioned questions in a poll of likely NYS voters by Zogby International. It found that 71.5% believe “late-term” abortions should continue to be legal if a doctor determines that a woman’s health is at risk, and 76.2% think the decision to have a “partial birth abortion” late in pregnancy is a medical decision that should be made by a woman, her family, and her doctor – not by legislators or the courts.

Lest anyone think otherwise, this battle is part of the plan to end legal abortion in this country. There would be little pro-choice opposition to a bill to ban abortions after viability with exceptions for the life and health of the woman – but the anti-choice forces won’t hear of it because they want to keep the issue alive. Mark Crutcher, president of Life Dynamics, a group that spurs malpractice suits against abortion providers, admitted “the whole issue is a scam being perpetrated by people on our side of the issue for fund-raising purposes.” The Christian Coalition has already discussed with Speaker Newt Gingrich a series of votes banning abortions in the ninth month, then the eighth month, etc.

On cable television recently, a NYC Christian Coalition leader was asked if the group would be satisfied with banning “partial birth abortions.” She answered that they would not. She said no abortion methods are acceptable because they want to ban all abortions for all women in all stages of pregnancy.