Analysis of Supreme Court Ruling on Late-Term Abortions

What are the essential facts discussed in the late-term abortion case recently decided by the Suypreme Court.

Before the Court was a Nebraska Act limiting late-term abortion procedures. The Act prohibits the employment of certain methods used in late-term abortions and individuals performing such methods are liable for criminal action. These prohibited procedures are specifically described below. The women on whom these methods are employed are under no criminal liability whatsoever.

The Nebraska case involves only those abortions in which a “living fetus is delivered vaginally.” (Called Dilatation and Extraction, or D-E) It does not restrict an abortion of an expired fetus. It also does not apply to abortions via hysterotomy or hysterectomy, nor those involving pharmacological agents, or intrauterine or intravaginal destruction and extraction. The act applies to both pre-viable and post-viable fetuses.

The Act defines this particular form of partial-birth abortion (D-E) as one in which the abortion is performed only after, either the entire fetal head is outside the mother’s body, or in case of breech or other such presentation, any part of the fetal trunk past the navel is outside the body. If the abortion does not involve the delivery of a live fetus to these anatomical landmarks, these prohibitions do not apply.

This Act states that a physician may not perform an “overt act” that would end the life of the partially delivered “living” fetus. In other words, this “overt act” must be separate from any act involved in the actual delivery and must occur only after the aforementioned anatomical landmarks have been reached. It also applies only if the fetus has been delivered to the landmarks intentionally; if delivered to these landmarks inadvertently, the act does not apply.

The Supreme Court agreed that there are differences of opinion regarding the relative safety of D-E vs. other forms of late-term abortions, and found that there is no firm statistical medical data confirming that one form may be more dangerous to the mother than another. The State, therefore, has the right to take moral issues into account in deciding among these procedures. The State of Nebraska has very explicitly defined a fetus delivered to very explicit anatomical landmarks as a fetus which has “started life” (my words) and therefore, any overt act to end its life approaches infanticide. The Court concludes that the State has a vested moral interest in the preservation of all life, in fact defining the partially delivered fetus as having essentially been “born.”

The Court holds very clearly that it’s ruling applies to this particular case and does not presume to evaluate the maternal indications for other cases. It accepts that the provision regarding “health of the mother” holds here in that there are other available procedures (see above), and that a significant number of physicians agree that prohibiting this one form of abortion would never impose significant health risks to the mother as the other procedures are available to her. Other physicians have disagreed, saying that D-E has “safety advantages” over the other forms of abortion. As previously mentioned, however, the Court found that there have been no proper statistical studies to document the validity of this argument.

The Court decided, based on previous lower court rulings, and previous stare decisis Court rulings that the Court has “given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.


Justice Ginsburg, writing for the minority dissenting, argued that there are clearly circumstances when D-E is the only safe technique. She also contests whether a government’s interest in the preservation of a viable fetal life applies here. She maintains that the act does not further that interest in that no fetus is saved from destruction, no matter what the method used. She then goes on to argue that since the act does not, in fact, preserve any fetal life, and limits a woman’s procedural choice, thereby potentially endangering her life and health, it is unconstitutional.

The majority, in its opening statements clearly re-affirmed it’s holding in Roe v. Wade and in Casey. Roe v. Wade has three main provisions 1) a woman has the right to choose to have an abortion before fetal viability and to obtain it without undue interference from the Sate. 2) The Sate has the power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering the women’s life or health. 3) The State has legitimate interests from the pregnancy’s outset in protecting the health of the woman and the life of the fetus that may become a child. In this case, though all three are implicated, it is the third that requires the most extended discussion.

Analysis

It is difficult for me to conclude that one side is right and one side is wrong, I am not informed as to the medical data vis-à-vis the risks of the various late-term abortion procedures. This would be critical. If the Court was correct in stating that there are no statistics to show that D-E is considerably less risky than the permitted techniques, then there could be no medical reason to perform one versus the other. This, however, does not answer the question as to a woman’s right to request what her doctor considers the safest procedure, whatever it may be.

The essential question really boils down to how one feels about the status of a “living fetus” that has already been partially-born, i.e. the head has been delivered, or the body has been delivered up to the navel (in breech presentations.) The Court is basically stating that such “fetuses” are, in fact, either live births, or at least close enough to be considered a live birth.

Talmudic law has, in fact, prohibited termination of “fetal” life in cases where the 50% of the “fetus” has been delivered. Apparently Talmudic law, and now, American law has decided that a partial live birth is no longer a non-viable fetus and is, in fact, to be treated like a born infant, and that destroying such a fetus (or child) approaches infanticide.

The question really becomes a moral one more than anything else.

It is most important to realize, however, that the Court did not rule against late-term abortions, only against D-E - one of several techniques available to carry this procedure out.

Patient Rights vs. Doctor Rights

A patient's right to refuse treatment and a patient's right to demand treatment are two very separate concepts. It is akin to comparing a passenger's right to refuse to risk flying in a 'safe' plane with a pilot's right to refuse to risk flying an improperly prepared aircraft even if the passenger demands it.

There are two kinds of medically"unsafe procedures." - 1)the procedure which inherently is associated with a high mortality rate, and 2)the procedure associated with a low mortality rate, but becoming high risk without the available preoperative data required for a successful outcome.

The patient is free to seek other opinions, but has limited right to the performance of unsafe interventions. There is a difference between the two forms of so-called unsafe interventions. The patient may be justified in demanding a procedure that is highly risky, if this is the only available procedure, and can not be safely carried out under any circumstances. But no patient can demand that a physician transform a low-risk procedure into a high-risk procedure by prohibiting him from obtaining the necessary pre-operative information.

In the days prior to modern non-interventional forms of cardiac diagnosis, angiograms, using catheters inserted into the heart, were required for accurate diagnosis of a major cardiac abnormality. No surgeon could be persuaded to operate on a patient (except perhaps in a dire emergency) unless he were satisfied that all the required prereqeuisite knowledge was available in order to safely proceed